INTERNATIONAL LAW. 
 
 THE CASE 
 
 PRIVATE ARMED BRIG OF WAR 
 
 GEN. ARMSTRONG, 
 
 CONTAINING 
 
 LETTERS AND DOCUMENTS REFERRING TO THE HISTORY 
 
 OF THE CLAIM ; BRIEF OF FACTS, AND AUTHORITIES 
 
 CITED; ARGUMENTS OF CHARLES O'CONOR, ESQ., 
 
 HON. P. PHILLIPS, AND SAM 0. REID, JB.; AND 
 
 BRIEF OF THE U. S. SOLICITOR 
 
 BEFORE THE UNITED STATES COURT OF CLAIMS 
 
 AT WASHINGTON, D. 0. 
 
 THE DECISION OF THE COURT, 
 
 AND 
 
 AN APPENDIX 
 
 CONSISTING OF 
 
 8ECRETAEY MONROE'S LETTER OF INSTRUCTIONS TO PRIVATE ARMED 
 
 VESSELS; THE TREATY WITH PORTUGAL, AND THE 
 
 AWARD OF LOUIS NAPOLEON. 
 
 REPORTED AND EDITED 
 
 BY SAM C. REID, JK.. 
 
 COUNSELLOR AT LAW. 
 
 NEW YORK: 
 BANKS, GOULD & CO., 144 NASSAU STREET. 
 
 ALBANY:* 
 GOULD, BANKS & CO., 475 BROADWAY. 
 
 1857.
 
 OFFICIAL REPORT 
 
 OP 
 
 THE BATTLE OF FATAL, 
 
 MADE BY CAPTAIN REID TO MESSRS. JENKINS AND HAVENS, THE AGENTS. 
 
 FATAL, 4*& October, 1814. 
 
 WITH infinite regret I am constrained to say it has eventually 
 fallen to my lot to state to you the loss and total destruction of the 
 private armed brig General Armstrong, late under my command. 
 
 We sailed from Sandy Hook on the evening of the 9th ult., and 
 about midnight fell in close aboard of a razee and ship-of-the-line. 
 They pursued till next day noon, when they thought proper to give 
 over chase. On the llth, after a nine hours' chase, boarded the 
 private armed schooner Perry, John Colman, six days from Phila- 
 delphia ; had thrown over all his guns. On the following day, fell 
 in with an enemy's gun brig ; exchanged a few shots with, and left 
 him. On the 24th, boarded a Spanish brig and schooner, and a 
 Portuguese ship, all from the Havana. On the 26th following, 
 came to in Fayal Roads, for the purpose of filling water ; called on 
 the American consul, who very politely ordered our water imme- 
 diately sent off, it being our intention to proceed to sea early the 
 next day. At 5, P.M., I went on board, the consul and some other 
 gentlemen in company. I asked some questions concerning enemy's 
 cruisers, and was told there had been none at these islands for several 
 weeks ; when about dusk, while we were conversing, the British brig 
 Carnation suddenly hove in sight, close under the N.E. head of the 
 
 5
 
 VI OFFICIAL REPORT OF 
 
 harbor, within gunshot when first discovered. The idea of getting 
 under way was instantly suggested ; but finding the enemy's brig 
 had the advantage of a breeze, and but little wind with us, it was 
 thought doubtful if we should be able to get to sea without hazard- 
 ing an action. I questioned the consul to know if, in his opinion, 
 the enemy would regard the neutrality of the port ? He gave me 
 to understand I might make myself perfectly easy, assuring me, at 
 the same time, they would never molest us while at anchor. But 
 no sooner did the enemy's brig understand from the pilot-boat who 
 we were, when she immediately hauled close in, and let go her anchor 
 within pistolshot of us. At the same moment, the Plantagenet and 
 frigate Rota hove in sight, to whem the Carnation instantly made 
 signal, and a constant interchange took place for some time. The 
 result was, the Carnation proceeded to throw out all her boats, 
 despatched one on board the commodore, and appeared otherwise to 
 be making unusual exertions. From these circumstances I began 
 to suspect their real intentions. The moon was near its full, which 
 enabled us to observe them very minutely ; and I now determined 
 to haul in nearer the shore. Accordingly, after clearing for action, 
 we got under way, and began to sweep in. The moment this was 
 observed by the enemy's brig, she instantly cut her cable, made sail, 
 and despatched four boats in pursuit of us. Being now about 8 P.M. 
 as soon as we saw the boats approaching we let go our anchor, got 
 springs on our cable, and prepared to receive them. I hailed them 
 repeatedly as they drew near, but they felt no inclination to reply. 
 Sure of their game, they only pulled up with the greater speed. I 
 observed the boats were well manned, and apparently as well armed ; 
 and, as soon as they had cleverly got alongside, we opened our fire, 
 which was as soon returned ; but meeting with rather a warmer 
 reception than they had probably been aware of, they soon cried out 
 for quarters, and hauled off. In this skirmish, I had one man killed, 
 and my first lieutenant wounded. The enemy's loss must have been 
 upwards of twenty killed and wounded. 
 They had now repaired to their ships to prepare for a more for-
 
 THE BATTLE OF FATAL. Vll 
 
 midable attack. We, iii the interim, having taken the hint, prepared 
 to haul close in to the beach, where we moored head and stern 
 within half pistolshot of the castle. This done, we again prepared, 
 in the best possible manner, for their second reception. About 
 9 P.M. we observed the enemy's brig towing in a large fleet of boats. 
 They soon after left the brig, and took their stations in three 
 divisions, under the covert of a small reef of rocks, within abont 
 musketshot of us. Here they continued maneuvering for some 
 time, the brig still keeping under way to act with the boats, should 
 we at any time attempt our escape. 
 
 The shore was lined with the inhabitants, waiting the expected 
 attack ; and from the brightness of the moon, they had a most 
 favorable view of the scene. The governor, with most of the first 
 people of the place, stood by and saw the whole affair. 
 
 At length, about midnight, we observed the boats in motion (our 
 crew having laid at their quarters during the whole of this interval.) 
 They came on in one direct line, keeping in close order, and we 
 plainly counted twelve boats. As soon as they came within proper 
 distance we opened our fire, which was warmly returned from the 
 enemy's carronades and small arms. The discharge from our Long 
 Tom rather staggered them ; but soon recovering, they gave three 
 cheers, and came on most spiritedly. In a moment they succeeded 
 in gaining our bow and starboard quarter, and the word was Board. 
 Our great guns now becoming useless, we attacked them sword in 
 hand, together with our pikes, pistols, and musketry, from which our 
 lads poured on them a most destructive fire. The enemy made fre- 
 quent and repeated attempts to gain our decks, bat were repulsed at 
 all times, and at all points, with the greatest slaughter. About the 
 middle of the action, I received intelligence of the death of my 
 second lieutenant ; and soon after of the third lieutenant being 
 badly wounded. From this and other causes, I found our fire had 
 much slackened on the forecastle ; and, fearful of the event, I 
 instantly rallied the whole of our after division, who had been 
 bravely defending and now had succeeded in beating the boats off
 
 OFFICIAL REPOET OF 
 
 the quarters. They gave a shout, rushed forward, opened a fresh 
 fire, and soon after decided the conflict, which terminated in the 
 total defeat of the enemy, and the loss of many of their boats : two 
 of which, belonging to the Rota, we took possession of, literally 
 loaded with their own dead. Seventeen only escaped from them 
 both, who had swam to the shore. In another boat under our 
 quarter, commanded by one of the lieutenants of the Plantagenet, 
 all were killed saving four. This I have from the lieutenant him- 
 self, who further told me that he jumped overboard to save his own 
 life. 
 
 The duration of this action was forty minutes. Our deck was 
 now found in much confusion, our Long Tom dismounted, and 
 several of our carriages broken ; many of our crew having left the 
 vessel, and others disabled. Under these circumstances, however, 
 we succeeded in getting Long Tom in his berth, and the decks 
 cleared in some sort for a fresh action, should the enemy attack us 
 again before daylight. About 3 A. M. I received a message from 
 the American consul, requesting to see me on shore, where he 
 informed 'me the governor had sent a note to Captain Lloyd, 
 begging him to desist from further hostilities. To which Captain 
 Lloyd sent for answer, that he was now determined to have the 
 privateer at the risk of knocking down the whole town ; and if the 
 governor suffered the Americans to injure the privateer in any 
 manner, he should consider the place an enemy's port, and treat it 
 accordingly. Finding this to be the case, I considered all hopes of 
 saving our vessel to be at an end. I, therefore, went on board, and 
 ordered all our wounded and dead to be taken on shore, and the 
 crew to save their effects as fast as possible. Soon after this it 
 became daylight, when the enemy's brig stood close in, and com- 
 menced a heavy fire on us with all her force. After several broad- 
 sides she hauled off, having received a shot in her hull, her rigging 
 much cut, and her foretopmast wounded. She soon after came 
 in again, and anchored close to the privateer. I then ordered the 
 Armstrong to be scuttled, to prevent the enemy from getting her
 
 THE BATTIfE OF FATAL. il 
 
 off. She was soon after boarded by the enemy's boats, and set on 
 fire, which soon completed her destruction. 
 
 They have destroyed a number of houses in the town, and 
 murdered some of the inhabitants. 
 
 By what I have been able to learn from the British consul and 
 officers of the fleet, it appears there were about 400 officers and 
 men in the last attack by the boats, of which 120 were killed and 
 about 130 wounded. Captain Lloyd, I am told by the British 
 consul, is badly wounded in the leg ; a jury of surgeons had been 
 held, who gave as their opinion that amputation would be necessary 
 to insure his life. The fleet has remained here about a week, during 
 which they have been principally employed in burying their dead, 
 and taking care of their wounded. 
 
 Three days after the action, they were joined by the ship Thais 
 and brig Calypso (two sloops-of-war), who were immediately taken 
 into requisition by Captain Lloyd, to take home the wounded men. 
 The Calypso sailed for England, with part of the wounded, on the 
 2d instant, among whom was the first lieutenant of the Plantagenet. 
 The Thais sails this evening, with the remainder. Captain Lloyd's 
 fleet sailed to-day, supposed for the West Indies. 
 
 The loss, on our part, I am happy to say, is comparatively trifling ; 
 two killed and seven wounded. With regard to my officers, in general, 
 I feel the greatest satisfaction in saying, they one and all fought 
 with the most determined bravery, and to whom I feel highly 
 indebted for their officer-like conduct during the short period we 
 were together ; their exertions and bravery deserved a better 
 fate. 
 
 It gives me much pleasure to announce to you that our wounded 
 are all in a fair way of recovery, through the unremitted care and 
 attention of our worthy surgeon. 
 
 Mr. Dabney, our consul, is a gentleman possessing every feeling 
 of humanity, and to whom the utmost gratitude is due from us for 
 his great care of the sick and wounded, and his polite attention to 
 my officers and myself.
 
 X THE BATTLE OF FATAL. 
 
 Mr. Williams was a most deserving and promising officer. Hia 
 country, in him, has lost one of its brightest ornaments ; and his 
 death must be sadly lamented by all who knew his worth. 
 
 Accompanied with this you will find a copy of my protest, 
 together with copies of letters, written by Mr. Dabney to the 
 governor of Fayal, our minister at Rio Janeiro, and our Secretary 
 of State. These letters will develop more fully the circumstances 
 of this unfortunate affair. 
 
 We expect to sail to-morrow, in a Portuguese brig, for Amelia 
 Island, which takes the whole of our crew ; till when, I remain, 
 gentlemen, your very obedient, humble servant, 
 
 SAM C. REID. 
 I here insert, for your inspection, a list of the killed and wounded : 
 
 KILLED. 
 
 Mr. Alexander O. Williams, second lieutenant, by a musket-ball in 
 
 the forehead ; died instantly. 
 Burton Lloyd, seaman, by a musket-ball through the heart ; died 
 
 instantly. 
 
 WOUNDED. 
 
 Frederick A. Worth, first lieutenant, in the right side. 
 Robert Johnson, third lieutenant, in the left knee. 
 Bazilla Hammond, quarter-master, in the left arm. 
 John Finer, seaman, in the knee. 
 William Castle, seaman, in the arm. 
 Nicholas Scalsan, seaman, in the arm and leg. 
 John Harrison, seaman, in the hands and face, by the explosion 
 of a gun.
 
 LETTER OF JOHN B. DABNKY. 
 
 LETTER FROM THE U. S. CONSUL AT FATAL TO THE SECRETARY OF STATB 
 
 FATAL, 5th. October, 1814 
 
 SIR, I have the honor to state to you that a most outrageous 
 violation of the neutrality of this port, in utter contempt of the 
 laws of civilized nations, has recently been committed here by the 
 commanders of his Britannic majesty's ships Plantagenet, Rota, 
 and Carnation, against the American private armed brig General 
 Armstrong, Sam. C. Reid, commander ; but I have great satisfac- 
 tion in being able to add that this occurrence terminated in one of 
 the most brilliant actions on the part of Captain Reid, his brave 
 officers and crew, that can be found on naval record. 
 
 The American brig came to anchor in this port, in the afternoon 
 of the 26th of September, and at sunset of the same day the above- 
 named ships suddenly appeared in these roads ; it being nearly calm 
 in the port, it was rather doubtful if the privateer could escape if 
 she got under way, and, relying on the justice and good faith of the 
 British captains, it was deemed most prudent to remain at anchor. 
 A little after dusk, Captain Reid, seeing some suspicious movements 
 on the part of the British, began to warp his vessel close under the 
 guns of the castle, and, while doing so, he was, at about eight 
 o'clock, P.M., approached by four boats from the ships, filled with 
 armed men. After hailing them repeatedly, and warning them to 
 keep off, he ordered his men to fire on them, and killed and wounded 
 several men. The boats returned the fire, and killed one man, and 
 wounded the first lieutenant of the privateer, and returned to their 
 ships, and, as it was now light moonlight, it was plainly perceived 
 from the brig, as well as from the shore, that a formidable attack 
 was premeditating. Soon after midnight, twelve or more large 
 boats, crowded with men from the ships, and armed with carronades, 
 swivels, and blunderbusses, small arms, &c., attacked the brig ; a 
 severe contest ensued, which lasted about forty minutes, and ended
 
 Xii THE BATTLE OF FATAL. 
 
 iu the total defeat and partial destruction of the boats, with a most 
 unparalleled carnage on the part of the British. It is estimated by 
 good judges that nearly 400 men were in the boats when the attack 
 commenced, and no doubt exists in the minds of the numerous spec- 
 tators of the scene, that more than half of them were killed or 
 wounded ; sereral boats were destroyed j two of them remained 
 alongside the brig, literally loaded with their own dead. From these 
 two boats only seventeen reached the shore alive ; most of them 
 were severely wounded. The whole of the following day the British 
 were occupied in burying their dead ; among them were two lieu- 
 tenants and one midshipman of the Rota ; the first lieutenant of 
 the Plantagenet, it is said, cannot survive his wounds, and many of 
 the seamen who reached their ships were mortally wounded, and 
 have been dying daily. The British, mortified at this signal and 
 unexpected defeat, endeavor to conceal the extent of the loss ; they 
 admit, however, that they lost in killed, and who have died since the 
 engagement, upwards of 120 of the flower of their officers and men. 
 The captain of the Rota told me he lost 10 men from his ship. Two 
 days after this affair took place, the British sloops-of-war Thais and 
 Calypso came into port, when Captain Lloyd immediately took them 
 into requisition to carry home the wounded officers and seamen 
 they have sailed for England, one on the 2d and the other on the 
 4th instant ; each carried 25 badly wounded. Those who were 
 slightly wounded, to the number, as I am informed, of about 30, 
 remained on board of their respective ships, and sailed last evening 
 for Jamaica. Strict orders were given that sloops-of-war should 
 take no letters whatever to England, and those orders were rigidly 
 adhered to. 
 
 In face of the testimony of all Fayal, and a number of 
 respectable strangers who happened to be in this place at the 
 moment, the British commander endeavors to throw the odium of 
 this transaction on the American captain, Reid, alleging that he sent 
 the boats merely to reconnoitre the brig, and without any hostile 
 intentions. The pilots of the port did inform them of the privateer
 
 LETTER OF JOHN B. DABNEY. 
 
 the moment they entered the port. To reconnoitre an enemy's 
 vessel in a friendly port, at night, with four boats, carrying by the 
 best accounts 120 men, is certainly a strange proceeding ! The fact 
 is, they expected, as the brig was warping in, that the Americans 
 would not be prepared to receive them, and they had hopes of carry- 
 ing her by a "coup de main." If anything could add to the 
 baseness of this transaction on the part of the British commander, it 
 is want of candor openly and boldly to avow the facts. In vain can 
 he expect by such subterfuge to shield himself from the indignation 
 of the world, and the merited resentment of his own government and 
 nation for thus trampling on the sovereignty of their most ancient 
 and faithful ally and for the wanton sacrifice of British lives. 
 
 On the part of the Americans the loss was comparatively nothing ; 
 two killed and seven slightly wounded ; of the slain, we have to 
 lament the loss of the second Lieut., Mr. Alexander 0. Williams 
 of New York, a brave and meritorious officer. 
 
 Among the wounded are Messrs. Worth and Johnston, first and 
 third lieutenants ; Capt. Reid was thus deprived, early in the 
 action, of the services of all his lieutenants ; but his cool and 
 intrepid conduct secured him the victory. 
 
 On the morning of the 27th ult., one of the British ships placed 
 herself near the shore, and commenced a heavy cannonade on the 
 privateer. Finding further resistance unavailing, Capt. Reid ordered 
 her to be abandoned, after being partially destroyed, to prevent her 
 falling into the hands of the enemy, who soon after sent their boats 
 and set her on fire. 
 
 At 9 o'clock in the evening (soon after the first attack), I applied 
 to the governor, requesting his excellency to protect the privateer, 
 either by force, or by such remonstrance to the commander of the 
 squadron as would cause him to desist from any further attempt. 
 The governor indignant at what had passed, but feeling himself 
 totally unable, with the slender means he possessed, to resist such a 
 force, took the part of remonstrating, which he did in forcible but
 
 XIV THE BATTLE OF FATAL. 
 
 respectful terms. His letter to Captain Lloyd had no other effect 
 than to produce a menacing reply, insulting in the highest degree. 
 Nothing can exceed the indignation of the public authorities, as 
 well as of all ranks and description of persons here, at this unpro- 
 voked enormity. Such was the rage of the British to destroy this 
 vessel, that no regard was paid to the safety of the town ; some of 
 the inhabitants were wounded and a number of the houses were 
 much damaged. The strongest representations on this subject are 
 prepared by the governor for his court. 
 
 Since this affair the commander, Lloyd, threatened to send on 
 shore an armed force and arrest the privateer's crew, saying there 
 were many Englishmen among them, and our poor fellows, afraid of 
 his vengeance, have fled to the mountains several times and have 
 been harassed extremely. At length Captain Lloyd, fearful of 
 losing more men if he put his threats in execution, adopted this 
 stratagem ; he addressed an official letter to the governor, stating 
 that in the American crew were two men who deserted from his 
 squadron in America, and as they were guilty of high treason, he 
 required them to be found and given up. Accordingly a force was 
 sent into the country, and the American seamen were arrested and 
 brought to town, and as they could not designate the said pretended 
 deserters, all the seamen here passed an examination of the British 
 officers, but no such persons were found among them. I was 
 requested by the governor and British consul to attend this humili- 
 ating examination, as was also Captain Reid ; but we declined to 
 sanction by our presence any such proceedings. 
 
 Captain Reid has protested against the British commanders of 
 the squadron for the unwarrantable destruction of his vessel in a 
 neutral and friendly port, as also against the government of .Portu- 
 gal for their inability to protect him. 
 
 No doubt this government will feel themselves bound to make 
 ample indemnification to the owners, officers, and crew of this vessel, 
 for the great loss they have severally sustained.
 
 BRIEF OF FACTS. XV 
 
 I shall as early as possible transmit a statement of this trans- 
 action to our minister at Rio Janeiro for this government. 
 I have the honor to be, with great respect, sir, your most obedient 
 
 servant, 
 
 JOHN B. DABNEY. 
 
 To the Secretary of State of U. S. 
 Washington. 
 
 BRIEF OF FACTS. 
 
 ; -.-w> * V 1 -' 
 
 The claimants in this case assert the liability of the government of 
 the United States to indemnify them for the losses sustained herein, 
 upon the following brief of facts: 
 
 1st. That immediately after the outrage was committed by the 
 British fleet upon the American brig, the Portuguese government 
 acknowledged its liability to the United States; charged the viola- 
 tion of the neutrality of the port upon England; and demanded an 
 apology and indemnification from that government, which was 
 accorded. (See letter from the Marquis de Aguiar to Mr. Sump- 
 ter, and enclosures in Sen. Doc. No. 14, 1st ses. 29th Cong. p. 22 
 et ante to 12.) 
 
 2d. That every administration of this government, from Mr. 
 Madison's down to President Taylor's, has admitted, recognized, 
 and asserted the rights of the claimants. (See letters of instruction 
 from the Department of State in Sen. Doc. 14, ibid.) That, in 
 1845, under the administration of Mr. Polk, the Portuguese gov- 
 ernment, for the first time, denied its liability, and refused indemni- 
 fication; and the prosecution of the claim was abandoned by Mr. 
 Upshur on the ground that " argument and importunity had been. 
 exhausted," although the claimants' rights were never once ques- 
 tioned. (See letter of Senor De Castro, Sen. Doc. 14, p. 48, and 
 Mr. Upshur to Mr. Reid, and reply, ibid:, p. 54.) That afterwards, 
 during Mr. Polk's administration, this claim was brought before
 
 ^CVl BRIEF OF FACTS. 
 
 the Senate of the United States, by a resolution calling for the cor- 
 respondence in the case, and the Committee on Foreign Relations 
 recommended its reference back to the Department of State for fur- 
 ther prosecution, which was ordered. (See Mr. Atherton's report, 
 May 19, 1846.) 
 
 3d. That, under the administration of General Taylor, the prose- 
 cution of this and other claims against Portugal was renewed by a 
 letter of instructions from Mr. Clayton to Mr. Hopkins. (See let- 
 ter G, p. 16, in Ex. Doc. Ho. of Reps., No. 53, 1st sea., 32d 
 Cong.) Finally, on the 8th of March, 1850, Mr. Clayton, Secre- 
 tary of State, was instructed by the President to make a peremp- 
 tory demand for this claim through Mr. J. B. Clay, our charge at 
 Lisbon, in opposition to the proposition of Portugal to refer this 
 and other claims to arbitration. (See letter U. p. 68, V. 69, Y. 
 73, in Doc. 53, ibid.) 
 
 4th. That on this demand being made, Portugal offered to pay 
 all the other claims, as a bonus, if the United States would refer 
 the Armstrong claim to arbitration, which proposition was again 
 rejected, and Mr. Clay demanded his passports, and left for France. 
 (See letters Y, Z, AA f BB, p. 73 to 81, and BBB, 112, in Doc. 
 53, ibid.) 
 
 5th. That pending this negotiation the Portuguese government 
 made further admissions of its liability by citing the acts and 
 acknowledgments of the English government. (See letter I, Count 
 Tojal to Mr. Hopkins, p. 34, and letter L, to Mr. Clay, p. 51, and 
 Mr. Clay's reply, M, p. 54, ibid.) That Portugal never admitted 
 that she had abandoned the claim made on England, for indemnifica- 
 tion for the destruction of the brig, up to this time. (See letter of 
 Mr. Hopkins, H, p. 31, ibid.) That Mr. Clay demanded copies of 
 the diplomatic correspondence between Portugal and England on 
 this subject, which was refused. (See letter K, p. 46, ibid.) That, 
 notwithstanding, England was constantly interfering with this nego- 
 tiation, and furnishing communications and arguments to Portugal. 
 (See letters N, p. 57, and P, p. 62, ibid.)
 
 BRIEF OF FACTS. XVU 
 
 That in the meantime, the Portuguese minister at Washington 
 opened a correspondence with the Secretary of State, strenuously 
 urging the arbitration, to which Mr. Clayton peremptorily refused, 
 under instructions from the President, whose intention it was to lay 
 this claim before Congress for its final action. (See letters TT, p. 
 97; No. 22, p. 180, No. 25, p. 186, and No. 27, p. 191, TIL. p. 
 110, YY. p. 99, TJ. 68, ibid, and private letter of Mr. Clay- 
 ton, F.) 
 
 6th. That on the 9th July, 1850, General Taylor died, previous 
 to which period all negotiations had ceased, the Portuguese govern- 
 ment having received the ultimatum of the President. That on the 
 accession of Mr. Fillmore's administration, Mr. Webster only 
 three days after succeeding Mr. Clayton agreed with Mr. Figa- 
 neiro to accept the bonus of the payment of all the other demands, 
 and arbitrate the Armstrong case. (See Mr. Clayton's speeches, 
 p. 5, 13, and It.) Mr. Clay was informed of this acceptance, and 
 requested to return to Lisbon to complete the arrangement; which, 
 for the most honorable and delicate reasons, he declined. (See let- 
 ter DD, p. 83, ibid.) That on the 5th September, 1851, Mr. Web- 
 ster officially communicated to the Portuguese minister the Presi- 
 dent's acceptance of the terms to arbitrate this claim. (See letter 
 BBB, p. 112, ibid.) 
 
 7th. That the private agreement to arbitrate this claim was 
 entered into without the advice, information, knowledge, or consent 
 of the claimants, reversing the opinion of the previous Executive, 
 and in direct violation of the plighted faith, solemnly asseverated 
 to Portugal, that it would never consent to compromise the honor 
 of the nation or the rights of the claimants. (See conclusion of 
 letter H, p. 33, ibid.) That on hearing of the rumor of the accept- 
 ance through the newspapers, the agent of the claimants immedi- 
 ately wrote to the Secretary of the State, protesting against this 
 course, and begged to have the matter postponed until he could 
 arrive in Washington. He was informed, however, that it was toe 
 late, that the proposition had already been accepted, and the fa
 
 XV111 BRIEF OF FACTS. 
 
 formally announced to Portugal. (See letter of Mr. Reid, and Mr. 
 Webster's reply, p. 9 in the printed speeches, original marked A.) 
 That the responsibility was hereby fully assumed without the con- 
 sent of the claimants, and the act became established, perfect and 
 complete. That the said convention was not absolutely drawn 
 up until the 26th of February, 1851, seven months after the verbal 
 acceptance. (See letters FP and GG, p. 84, in House Doc. No. 
 53.) 
 
 8th. That this treaty or convention was submitted to the Senate, 
 and ratified on the 10th March, 1851, in secret session, without 
 any possible knowledge or information of the nature and circum- 
 stances under which said convention was made. (See letter GG. 
 p. 84, ibid., and Sen. Doc. No. 7, 1st Session 33d Congress.) 
 
 That the first article of said convention declares the conditions 
 under which said treaty was made, and that the consideration of the 
 bonus, for which this claim was agreed to be arbitrated, is set forth 
 in the fourth article of said treaty. (See Treaty in Appendix.) 
 
 That said treaty is imperfect and defective, and was made in vio- 
 lation of all principles of justice, and without a strict regard to 
 the protection of the rights of the claimants : first, because said 
 treaty, under the second article, has for its only object the decision 
 of a point of public law, which is not expressed or set forth in 
 such a manner as to compel the finding of the arbiter to be con- 
 fined to any particular point of law or statement of facts ; second, 
 because, under said second article, it is provided that the claim only 
 " in behalf of the captain, officers, and crew of said privateer should 
 be submitted to the arbitrament," while the claim in behalf of 
 the owners of said brig General Armstrong, is wholly disregarded, 
 omitted, and unprovided for, under said convention, consequently, 
 the claim of said owners was never submitted to arbitration ; third, 
 because, under the third article of said convention, it is not stipu- 
 lated that the arbiter shall hear and decide upon the law and the facts 
 which shall be submitted by the claimants through their government, 
 as well as on the part of Portugal. Fourth, because, by the third arti-
 
 BKIEF OF FACTS. XIX 
 
 cle of said treaty, the evidence is confined to the correspondence only, 
 at Lisbon, which has passed between the two governments, in refer- 
 ence to said claim ; and the protocol drawn up by Mr. Webster, in 
 the nature of instructions as to the mode and terms of submitting 
 the case to the arbiter, excluded all the important correspondence 
 of 1814, at Rio de Janeiro, between the Portuguese and British 
 Ministers ; the letter of admission from the Portuguese to the 
 American Minister ; the letter of the British Consul ; Captain 
 Reid's protest, and other documents contained in Sen. Doc. 14, 1st 
 sess. of 29th Congress. (See HH, p. 85 ; KK, p. 86 ; and LL, 
 p. 87, Doc. 53 ; and copy of Protocol, marked No. 1.) 
 
 9th. That on the 1th July, 1851, the claimants, by their agents, 
 filed at the Department of State a written argument ; and statement 
 of facts, which he requested to be sent to our minister, that the 
 claimants might be properly represented before the arbiter, but he 
 was verbally refused, on the ground that the terms of the treaty pre- 
 cluded it. (See argument submitted to the Department of State in 
 the Memorial, p, 12.) The agent afterwards addressed two notes 
 to the Secretary of State, urging this request, but received no 
 answer. (See letters B and C to Mr. Webster.) The agent then 
 addressed himself to the President, desired to be sent to France 
 with the papers and documents, and that he might be authorized to 
 present the case of the claimants through Mr. Rives, the American 
 minister at Paris, to the arbiter, which was also refused. (See let- 
 ter from Mr. Crittenden, acting Secretary of State, marked D.) 
 
 10th. That on the 9th of June, 1851, Mr. Hadduck concluded 
 the protocol, and sent the papers to Mr. Rives at Paris. (See let- 
 ter LL, p. 87, in House Doc. No. 53 ; letter of Mr. Thomas, 
 assistant Secretary of State, marked No. 2.) On the 1st Novem- 
 ber, 1851, the President of France accepted the office of arbiter. 
 Subsequently, Louis Napoleon became " Prince President," and 
 on the 29th November, 1852, one year after the case was sub- 
 mitted, Mr. Rives was informed that a decision had just been 
 rendered. (See Sen. Doc. No. 24, 2d sess. 32d Congress, p. 2.)
 
 XX BEIEF OF FACTS. 
 
 That on the 10th December, 1852, Mr. Rives was informed by 
 the French Minister that the Emperor had deputed him to deliver 
 the award in his name, and that said award was delivered the next 
 day accordingly, in the name of the Emperor of France, contrar} 
 to the treaty stipulation, which referred the case to the President of 
 France. (See letter of Drouyn De L'Hnys, p. 3, ibid., and Mr. 
 Rives to Mr. Everett, p. 1, ibid.) 
 
 llth. That as soon as the award of the Emperor of France was 
 made pnblic, the claimants, by their agent, entered a solemn pro- 
 test against its acceptance by the United States ; (See copy of 
 Protest, letter No, 3.) but was informed by letter from Mr. 
 Everett, Secretary of State, marked jB, dated llth February, 1853, 
 that "the award of the arbiter in this case must be considered 
 as decisive." This declaration was reiterated in Mr. Marcy's letter 
 to the President, in Sen. Doc. No. 7, 1st sess. of 33d Congress. 
 
 12th. That said award does not comply with the terms of the 
 treaty creating the arbitration, because it does not decide any 
 point of public law involved in the case. (See letters of Mr. Hop- 
 kins, H, pp. 26 and 21. Count Tojal, I, p. 3t. Mr. Clay, M, p. 
 56 and Q, p. 65, in House Doc. No. 53.) That the statements 
 .upon which said award is founded are perverted and in violent 
 contradiction of the facts and evidence. That said award was 
 evidently drawn up by the Portuguese official, as it is in the 
 language of the arguments used, and is in the form of the execu- 
 tive decrees of Portugal. (See p. 125, ibid.) 
 
 That it shows on its face that the information obtained in regard 
 to the facts were received from the Portuguese representative, and 
 that be was evidently permitted a hearing, while the claimants were 
 in no manner represented. 
 
 13th. That the reasons assigned in said award are totally at 
 variance with and in contradiction of themselves : 1st because it 
 charges the violation of the neutrality equally on the part of both 
 the belligerents ; 2d, because it assigns for non-liability the weak- 
 ness and disability of the island of Fayal, to afford protection,
 
 BEIEF OF AUTHOEITIE8. XXI 
 
 while it alleges that Captain Reid did not apply from the beginning 
 for intervention, but had recourse to arms, " which released the sove- 
 reign of the. obligation in which he was to afford protection by any 
 other means than that of pacific intervention." (See award in 
 Appendix.) 
 
 That said award is disrespectful and insulting to this government, 
 because it advances among other reasons, ^an act in defence of 
 the Portuguese governor, which was considered reprehensible at 
 the time, and in conjunction with the committal of an act, with the 
 permission of said governor, by the British officers against the 
 American sailors, which had been justly rebuked by Mr. Clay as 
 insulting. (See letter K., pp. 47 and 48, ibid.) 
 
 It is under these circumstances the claimants ask to be indemni- 
 fied by their government for the losses sustained and claimed in 
 their petition. 
 
 BRIEF OF AUTHORITIES CITED ON THE PART OF 
 THE CLAIMANTS. 
 
 1. Of Jurisprudence as enlarged by legislative authority, with 
 increased power of establishing justice. Ordinary 'courts of law 
 are not created to declare or enforce justice in the abstract, or jus- 
 tice in general. See note A to De Bode vs. Regina, 13 Queen's 
 Bench Rep., 387. Jackson vs. Bartholomew, 20 Johnson's Rep., 28, 
 Story's Eq. Jur., 8, 9. 
 
 2. Whatever leads to hostility in nemtral territory, as well as 
 direct hostility between belligerents, is forbidden by the law of 
 nations. Wildman's International Law, 2 vol., 148. Case of The 
 Twee Gebroeders, 3 Rob. Rep., 164. The Ann, 3d Wheaton's 
 Rep., 435. The Mariana Flora, 11 Wheaton, p. 1. 
 
 3. The loss arising out of the violation of neutrality, must be 
 made good by the neutral government. Case of The Ann, ibid. 
 Kent's Com., vol. i. p. 122. Bynkershoeck, b. 1, c. 8. De Jure
 
 XXII BEIEF OF AUTHORITIES. 
 
 Maritime, b. 1, c. 1. p. 13. Flander's Maritime Law, p. 45. Case 
 of the French ship Grange, captured by the English in the Chesa- 
 peake Bay. Jefferson's letter to Penaut, 3 vol. Jeff, works, 232. 
 Opinions of Attorney General, vol. i., p. 33. Report of the Com- 
 mittee on Foreign Relations of the U. S. Sen., Jan., 1817, in 
 case of The Armstrong. Twee Gebroeders, 3 Rob. Rep., 162. 
 1 Wheaton, 405 ; 4 Wheaton, 52 ; Ibid., 298. 
 
 4. The indemnity due must be obtained by the neutral at his 
 own expense, and at all hazards. Duponceau's Law of War, p. 60. 
 
 5. The admissions of Portugal's liability to the United States, 
 and her demand against England. See Letters of the Marquis de 
 Aguiar to Mr. Sumpter, the American Minister at Rio, and to the 
 British Minister, Lord Strangford, 22 Dec., 1814. 
 
 6. The liability of Portugal in this case has been uniformly 
 asserted by our government. (See instructions.) Monroe to 
 Sumter, 3d January, 1815 ; Adams to de Serra, 14th May, 1818 ; 
 Dickens to Kavanagh, 20th May, 1835 ; Forsyth to Kavanagh, 22d 
 October, 1835 ; Webster to Barrow, 15th January, 1842 ; Web- 
 Bter to Barrow, 18th August, 1842 ; Clayton to Hopkins, 20th 
 April, 1849 ; Clayton to Clay, 8th March, 1850. 
 
 1. Liability of the government for its mis-conduct and neglect in 
 the prosecution of the claim. Sheels vs. Blackburne, 1 Henry 
 Blackstone, 158 ; Fellows vs. Gordon, 8 B. Monro, 415. 
 
 8. The government is bound to protect its citizen, and obtain 
 redress when spoliated by a foreign government, or become itself 
 responsible. Wendell's Blackstone, pp. 310, 311, and notes ; 
 Baron de Bode's case, 16 Eng. L. and Eq. Rep., p. 23 ; Farnham 
 vs. Brooks, 9 Pickering's Rep., 239 : See Denio, Ch. J., 3 Kernan's 
 N. Y., Rep.. 149. (See Decision of British Commissioners in the 
 case of the Hudson Bay Company vs. the United States, reported 
 in adjustment of claims under the convention of 8th February, 
 1853, with Great Britain, p. 165, in President's Message of 
 Aug. 11, 1856.) 
 
 9. In accepting a proposition to arbitrate a case, the several
 
 BBIEF OF AUTHOBITIE8. XX111 
 
 parts of the offer cannot be separated, it must be accepted or 
 rejected in toto. 2d Sandford's Chancery Rep., 244. 
 
 10. In submitting the case to arbitration, without the assent of 
 the claimants, and refusing them the right to be heard in any man- 
 ner by the arbitrator, either as to the law of the case, or by the 
 production of evidence as to the facts. See Elmendorf vs. Harris, 
 23 Wend. 633 ; Jordan vs. Hyatt, 3 Barb., s. c., 215 ; Oswald vs. 
 Gray, 29 Eng. Law and Eq., 88 ; Emory vs. wings, 7 Gill., 488; 
 Kyd on Awards, 95 ; Falconer vs. Montgomery, 4th Dallas's Rep., 
 233 ; Sharp vs. Bickerdike, 3d Dow's Parliamentary Rep., 102. 
 
 llth. In accepting the award as final and conclusive, when it 
 should have been rejected as not responding to the terms of the 
 submission. Vattel's Law of Nations, p. 277 ; Wildman, vol. 1 
 p. 186 ; Steers vs. Lashel, 1 Esp. N. P. C., p. 167 ; Oxenhan vs. 
 Lemon, 2 Dow. & R., 461 ; Vattel, book 11, ch. 18, 239.
 
 REPORT 
 
 OF THE 
 
 ARGUMENTS. 
 
 ARGUMENT OF SAM 0. REID, JUN., ESQ. 
 
 IN THE CASE OF THE CLAIMANTS OF THE PRIVATE ARMED BRIO GENERAL 
 ARMSTRONG. BEFORE THE U. S. COURT OF CLAIMS, SITTING IN THE 
 NATIONAL CAPITOL. 
 
 WASHINGTON, Saturday, November l*lth, 1855. 
 
 THIS cause came on to-day by consent. Present their Honors 
 JOHN J. GILCHRIST, Chief-Justice ; ISAAC BLACKFORD, and 
 GEORGE P. SCARBURGH, Associate Justices. 
 
 The Claimants were represented by CHARLES O'CoNOR, Esq., and 
 SAM C. REID, Junior, of New York ; Hon. P. PHILLIPS, of Alabama, 
 and HON. CHARLES NAYLOR, of Pennsylvania. 
 
 HON. MONTGOMERY BLAIR, IT. S. Solicitor, appeared for the 
 Government. 
 
 MR. REID, on opening the case, addressed the Court as follows : 
 
 May it please the honorable Court 
 
 I present myself before your honors to-day to vindicate a prin- 
 ciple of national faith, to substantiate the oath of American honor, 
 and to verify a great national and historical fact, denied both by
 
 10 BRIO GENERAL ARMSTRONG. 
 
 Portugal and England, and solemnly declared to be false by the 
 public decree of France. 
 
 
 
 In doing so, I shall expose the most remarkable diplomatic nego- 
 tiation to be found on record ; which reflected as great discredit by 
 the course pursued, as the gallant and brave defence made by the 
 vessel shed glory and splendor upon the country. 
 
 Sirs, this is a case in which not only the claimants are interested : 
 it is a cause in which every patriot, every American, has a deep, 
 absorbing interest, so far as the honor of his own country is 
 concerned. 
 
 I shall ask the great indulgence of this Court, as I proceed to lay 
 before it the evidence to establish the facts alleged, and I beg your 
 honors will extend to me your liberal forbearance and attention.* 
 
 The petition charges that, on the 26th and 27th of September, 
 A.D. 1814, the United States private armed brig General Arm- 
 strong commanded by Captain Sam C. Reid, belonging to the port 
 of New York, was destroyed by a large British fleet in the neutral 
 port of Fayal, in the Dominions of Portugal, in violation of the laws 
 of nations. That the Government of Portugal, immediately after 
 the transaction, admitted her liability to this Government, and 
 called upon England for an apology and indemnification, which was 
 unhesitatingly accorded. That the United States Government, 
 from the inception of this claim to the present day, has always 
 acknowledged the rights of the claimants as legal and just. That 
 under the administration of General Taylor, a fleet was sent to 
 Portugal and a peremptory demand made for this claim. That 
 afterwards the Government of the United States made a treaty 
 with Portugal, whereby she compromised the rights of the claimants, 
 and for a bonus agreed to refer the "Armstrong Claim" to arbitration. 
 That Louis Napoleon, the Umpire, decided adversely to the claim- 
 ants, and contrary to the law and evidence, and the facts in the 
 case, and in violation of his oath as President of the Republic of 
 France, the decision having been rendered by the " Emperor of 
 France." That the treaty and agreement made with Portugal to 
 
 * See Appendix for documents read in evidence.
 
 AEGUMENT OF SAM C. BEID, JE., ESQ. 11 
 
 arbitrate this claim was made without the knowledge, consent, or 
 advice of the claimants or their agent. That the Government of 
 the United States never protested against said award as being 
 illegal, unjust, and contrary to the articles of the treaty in this 
 case made with Portugal, although she was fully aware of the 
 same. 
 
 That the Government of the United States, in making said treaty 
 with Portugal, without the knowledge, advice, or consent of the 
 claimants, assumed the responsibility, and undertook, and promised 
 to pay the claimants their justly-recognized demands against Por- 
 tugal, to wit : the sum of one hundred and thirty-one thousand and 
 six hundred dollars, being the amount recognized by this Govern- 
 ment and demanded of Portugal. 
 
 That the facts herein contained all appear in the following docu- 
 ments, which are prayed to be filed herewith, and made a part of 
 this petition, to wit : 
 
 No. 1. " The memorial to Congress of Sam C. Reid, jr." (Sen. 
 Mis. Doc. No. 14, 1st sess. 33d Congress.) 
 
 No. 2. " Message of the President of the United States," con- 
 taining the correspondence, &c., from 1814 to 1844, in Sen. Doc. 
 14, 1st sess. 29 Congress. 
 
 No. 3. " Convention and treaty with Portugal." 
 
 No. 4. " Message from the President of the United States," con- 
 taining correspondence, &c., between this Government and Portugal, 
 in Ex. Doc. No. 53, Ho. of Rep. 1st sess. 32d Congress. 
 
 No. 5. " Correspondence and award of Louis Napoleon," in Ex. 
 Doc. No. 24, Senate 2d sess. 32 Congress. 
 
 No. 6. " Reports of Committees in Senate and House of Repre- 
 sentatives." (1st sess. 33d Congress, No. 157 Senate, and 139 
 House of Representatives." 
 
 No. 7. Debate on the bill in the Senate, in speeches of Ho. . 
 Messrs. Clayton, Brown, Bayard, Seward, Weller, Cass, and 
 Houston. 
 
 Your petitioner further represents that the said claim was pre-
 
 12 BRIG GENERAL ARMSTRONG. 
 
 sen ted to the Congress of the United States on the 19th day of 
 January, 1854, and referred to the Committee on Foreign Relations 
 in the Senate. Said Committee, on the 10th day of March, 1854, 
 reported in favor of said claimants ; which said report and accom- 
 panying bill have been made parts of this petition. On the. 26th 
 day of January, 1855, the bill was ordered to be engrossed for a 
 third reading, by a vote in the Senate of ayes 22, nays 17, which 
 vote was afterwards reconsidered on the 16th February, 1855, and 
 the bill ordered to lie upon the table by a vote of ayes 24, nays 23. 
 Your petitioner further represents that the said claim, having 
 also been presented to the House of Representatives, the Committee 
 on Foreign affairs, to whom it was referred, reported in favor of the 
 claimants on the 29th of May, 1854, which said report and accom- 
 panying bill have been made parts of this petition. That said bill 
 for the relief of the claimants failed to be acted upon by the House 
 
 
 
 of Representatives for the want of time, and was, by a resolution 
 of that body, transferred to this honorable court. 
 
 Therefore your petitioner prays that, in consideration of the pre- 
 mises, after investigation and argument herein, a bill be reported 
 by this honorable court for the relief of the owners, officers, and 
 crew of the United States private armed brig General Armstrong, 
 the claimants in this case, to the Congress of the United States, 
 appropriating the sum of one hundred and thirty-one thousand six 
 hundred dollars, to be paid to the said claimants, or to their legally 
 authorized representatives, out of the treasury of the United States. 
 
 And, in duty bound, your petitioner will ever pray, &c., 
 
 SAM C. REID, JR. 
 
 Agent and Attorney for Claimants. 
 
 DISTRICT OF COLUMBIA, 
 City and County of Washington. 
 
 Personally appeared before me, the undersigned, Sam C. Reid, 
 Jr., one of the claimants in the above case, who, being sworn, made
 
 ARGUMENT OF SAM C. REID, JR., ESQ. 13 
 
 oath that the matters contained in the annexed printed statement 
 are true, to the best of his knowledge and belief. 
 
 SAM C. REID, JR. 
 
 Sworn and subscribed before me this 13th day of July, A.D. 1855. 
 W. P. WILLIAMS, Notary Public. 
 
 MR. REID here proceeded to read to the Court the following docu- 
 ments as evidence in support of this case. [See Appendix.] 
 
 Monday November 18th, 1855. 
 
 MR. REID, on offering in evidence the letter of Mr. Chas. W. 
 Dabney, U. S. Consul at Fayal, to Mr. Wm. L. Marcy, Secretary 
 of State, 
 
 MR. BLAIR objected, and said I do not know what are the con- 
 tents of the letter the gentleman proposes to read or what he 
 intends to prove by it. The gentleman has already read several 
 papers to the Court not included in, or made part of his petition, 
 and I shall insist on his confining himself solely to the documents in 
 the petition. 
 
 MR. PHILLIPS rose to explain, and said May it please your 
 Honors, the letter in question is of a remarkable character, and 
 goes to establish the fact, beyond all dispute or cavil, that the 
 British were the first to violate the neutrality of the port of Fayal. 
 The existence of this letter was discovered but a few days ago, by 
 Mr. Reid, from an incidental conversation with a gentleman, late an 
 officer of our navy, who visited Fayal about a year ago, and who 
 had conversed with Mr. Dabney on the subject. I, therefore, move 
 that the petition be amended, and that this letter and the other 
 documents, not alluded to in the petition, be made a part thereof. 
 
 MR. BLAIR opposed the motion.
 
 14 BRIG GENERAL ARMSTRONG. 
 
 MB. REID. If the Court please, the course pursued by the learned 
 solicitor, on this occasion, is very remarkable. He has sat by, 
 listening to the reading of documents and letters used against the 
 claimants in the debate on this claim in the Senate (not referred to 
 in the petition) and took no objection, because the evidence was 
 supposed to run in favor of the government. He has heard me 
 read private letters produced against the claimants by the Depart- 
 ment of State, charging them with having acquiesced to this arbi- 
 tration, and no objection was taken whatever. But when I come to 
 read a piece of newly-discovered evidence a public letter to this 
 government, tending to establish the rights of the claimants, the 
 learned solicitor objects ! 
 
 Sirs, I have concealed nothing in this case. I have put every 
 particle of evidence before this Court, for and against the claim- 
 ants. The learned solicitor asks what this letter contains ? Sirs, it 
 contains the truth the very essence of this case. It contains the 
 statement of a distinguished gentleman, widely known on both sides 
 of the Atlantic, for his nobleness of character, for his honor and 
 probity. A gentleman, whose princely position and wealth puts 
 him beyond the reach of suspicion or temptation 1 I appeal to the 
 magnanimity of the solicitor, and ask him whether his duty, as a 
 government officer, prompts him to make these technical objections 
 in a case of this character, or whether it should not urge him to 
 adopt a nobler course that of the highest equity ? I hope the 
 motion of my learned colleague will prevail. 
 
 BY THE COURT [after consultation] . Leave to amend the petition 
 will be granted, and the documents considered as made a part 
 thereof. 
 
 The letters marked A, B, C, D, E, and F, and documents marked 
 [1, 2, 3, and 4] were then made part of the petition. 
 
 MR. REID having read Mr. Dabney's letter, and other documents, 
 here rested the case, and it being near three o'clock, the Court 
 adjourned.
 
 ARGUMENT OF SAM C. KEID, JB., ESQ. 15 
 
 Tuesday, November 20M. 
 
 The Court met pursuant to adjournment. The evidence haviug 
 been closed, 
 
 MR. REID, in summing up, spoke as follows : 
 
 May it please the honorable Court 
 
 I come now to the argument of this cause, upon the evidence 
 which has been laid before it. 
 
 I come to the argument of this cause with deep and powerful 
 feelings of a sense of wrong and injury, which have been heaped upon 
 the claimants for nearly half a century ! I will not conceal that I 
 come to it exultingly, and that I have looked forward to this hour 
 with an intense and painful interest. 
 
 I shall permit no scruples of policy to guide my course, and I 
 shall speak in plain language as being the best adapted to the 
 \jndication of truth, of honor, and of justice, which have so long 
 been made subservient to the miserable falsehoods, prevarications, 
 and weaknesses of unjust men I 
 
 Assuming the doctrine laid down by the most distinguished com- 
 mentators and publicists on international law, be true, that the 
 violation of the port or territory of any neutral power by a belli- 
 gerent, and the capture of property, public or private, under the 
 protection of the neutral flag, imposes on the neutral power a lia- 
 bility to indemnify the owner for all losses sustained, I shall pro- 
 ceed to fix the liability, in this case, first, upon Portugal. 
 
 We charge that the brig General Armstrong was attacked and 
 destroyed by the British fleet, in violation of the laws of neutrality, 
 and of the protection which that vessel sought in the neutral port 
 of Fayal. To support this fact, we have the sworn protest of 
 Captain Reid, and nine of his officers ; the letters of John B. and 
 Charles W. Dabney, IT. S. consuls at Fayal ;" the statement of 
 Governor Ribeiro ; and the letters of the Marquis de Aguiar, the
 
 16 BEIG GENERAL ARMSTRONG. 
 
 Portuguese Minister of State, to Mr. Sumpter and Lord Strangford, 
 the American and British ambassadors at Rio Janeiro. 
 
 It must be remembered that the statement of Gov. Ribeiro to 
 hie government was his voluntary act, founded upon official reports 
 made to him by the officers of the Castle, and what he himself wit- 
 nessed. In this statement, the violation of the neutrality of the port 
 of Fayal is expressly charged against the commander of the British 
 fleet. In describing the affair, the Governor says : 
 
 " We are now, for the first time, made, witnesses to a horrible and 
 bloody combat, occasioned by the madness, pride, and haughtiness 
 of an insolent British officer, who would not respect the neutrality 
 maintained by Portugal, in the existing contest between his Britannic 
 Majesty and the United States of America." 
 
 The Marquis de Aguiar, in his letter to Mr. Sumpter, says : 
 
 " Nor can his royal highness avoid viewing this affair, in the 
 light it is represented, as attacking his sovereignty and independ- 
 ence, by the manifest violation of his territory in the infringement 
 of its neutrality, which ought to have been observed by the two 
 belligerent powers. Not a moment's delay ensued in causing to be 
 addressed to the British minister at this court the note which is 
 confidentially communicated by a copy to your lordship, at the same 
 time that he directed his minister in London to make the reclama- 
 tion so serious an offence requires." 
 
 In the letter of the marquis to Lord Strangford, the language is 
 unequivocal. He says : 
 
 "His excellency will likewise observe the base attempt of the 
 British commander, at the time he commenced the unprovoked 
 attack on the American privateer, to attribute those violent meas- 
 ures to the breaking of the neutrality on the part of the Americans 
 in the first instance, by repelling the British armed barges that were 
 sent for the purpose of reconnoitering that vessel, advocating, with 
 the most manifest duplicity, that they were consequently the aggres- 
 sors ; but what appears still more surprising, is the arrogance with 
 which the British commander threatened to consider the territory
 
 ARGUMENT OF SAM C. REID, JR., ESQ. 17 
 
 of his royal highness as enemies, should the governor adopt any 
 measures to prevent them from taking possession of the American 
 privateer, which they subsequently plundered and set on fire ! 
 
 " His royal highness, at the same time that he has directed his 
 minister at the court of London to make the strongest representa- 
 tions before the prince regent of the United Kingdom of Great 
 Britain, and require satisfaction and indemnification, not only for his 
 subjects, tut for the American privateer, whose security was guaran- 
 teed by the safeguard of a neutral port, orders it to be signified to 
 his excellency, Lord Strangford, that he may inform his government 
 of the unfavorable impression the conduct of that British commander 
 had caused in the mind of his royal highness," &c. 
 
 Here, then, is the open avowal and admission, on the part of Por- 
 tugal, of her responsibility to the United States ; and a demand 
 made by the prince regent of Portugal, of his own free will and 
 accord, for satisfaction and indemnification from England, before he 
 was ever called on by this government to make indemnity. 
 
 In 1814, in compliance with the demand made by Portugal, Lord 
 Bathurst instructs Mr. Canning, the British ambassador at Lisbon, 
 to make a verbal apology to the prince regent. 
 
 In 1815, Mr. Monroe instructs Mr. Sumpter to call the attention 
 of the Portuguese government to this case, " and to state the claim 
 which the injured party has to immediate indemnification." Mr. 
 Sumpter replies, that a demand for satisfaction had already been 
 made from the British government. 
 
 In 1817, Lord Castlereigh, in obedience to the demand of Por- 
 tugal, sends 319 to indemnify the subjects of that government. 
 Now, why the indemnity demanded for the loss of the Armstrong 
 was not sent, or the grounds of England's refusal stated, we do not 
 know, for we never have had the benefit of any of the correspond- 
 ence between Portugal and England. But it is not material at this 
 point to make the inquiry. It is sufficient that the fact of Eng- 
 land's apology and indemnification to Portugal stands patent and 
 incontrovertible With what assurance, then, can England attempt 
 
 3
 
 18 BRIG GENERAL ARMSTRONG. 
 
 to charge on this government the very offence for which she had 
 made reparation and apologized for thirty years ago ? 
 
 In 1818, Mr. J. Q. Adams reiterates the demand against Portu^ 
 gal, in his letter to the Chevalier de Serra, who is informed that 
 this claim has been admitted by the acknowledgments of the officers 
 of his own government. At that time, both Portugal and England 
 had before them the counter-statement of commander Lloyd, and 
 the affidavit of Lieutenant Fausset (the latter made 21th September, 
 1814), and neither government charged Captain Reid with violating 
 the neutrality of the port of Fayal. 
 
 Why did not Portugal then inform the United States that Eng- 
 land had refused to make indemnity for this vessel, and " at that 
 time," in the language of Count Tojal, " every motive had ended for 
 expecting the British government to accede to the claim of his 
 majesty's government for indemnification of the loss of said pri- 
 vateer ?" 
 
 Why was not Lord Strangford immediately instructed by his 
 government to reply to the withering charges made against com- 
 mander Lloyd, whose conduct had been stigmatized in such unmeas- 
 ured terms ? Why was not Portugal made to retract the language 
 and apologize, instead of the "apology and indemnity made by 
 England ? and why was not a demand for an apology and indem- 
 nification presented against this government for the outrage com- 
 mitted ? Because the damning guilt of Commander Lloyd had 
 been too strongly established, and he, as well as Governor Ribeiro, 
 had been reprimanded by their respective governments. 
 
 Look at the falsehood and villainy of this lago Lloyd, through 
 whom England has since taught Portugal that the honor of her 
 Desdemona was false 1 What does he say in his letter to the 
 Governor of Fayal, written about two hours after the first attack : 
 
 "Sir Permit me to inform you that one of the boats of his 
 Britannic majesty's ship under my command, was, without the slight- 
 est provocation, fired on by the American schooner General Arm- 
 strong, in consequence of which two men were killed and seven were 
 
 i
 
 ABGTTltENT Off BAM C. EEID, JR., ESQ. 19 
 
 Bounded, and that the neutrality of the port, which I had, determined 
 to respect, has been thereby violated. In consequence of this out- 
 rage, I am determined to take possession of that vessel, and hope 
 that you will order your forts to protect the force employed for that 
 purpose. 
 
 " With due respect, I remain, sir, your obedient servant, 
 
 " THE COMMANDER 
 " Of his Britannic Majesty's Forces" 
 
 I challenge tne production of any epistle of equal brevity, con- 
 taining so many unqualified falsehoods, and so much arrogant 
 impudence. Why, sirs, he knew every word of it was false at the 
 time he penned it, and his innate consciousness of the fact made him 
 ashamed to sign, his name to it 1 I will now read Mr. Charles W. 
 Dabney's letter, which has been sleeping for over two years in the 
 Department of State, and which burst upon us like a gleam of sun- 
 light on a dark gloomy tower, with all the effulgence and brilliancy 
 of living truth : 
 
 "[No. 169.] CONSULATE OF THE U.S. FOR THE AZORES. 
 
 " Fayal, May 21, 1853. 
 
 " Sir The award of his majesty Napoleon III., in the case of the 
 General Armstrong, having just met my eye, I feel impelled, by a 
 regard for our national honor, as well as justice to the actors in that 
 unparalleled affair, to disavow, on their part, the slightest infringe- 
 ment of the neutrality of this port. The pecuniary amount is of no 
 consequence to us ; but I cannot allow the brilliancy of that action 
 to be tarnished, or the slightest stain to rest on our national 
 escutcheon. When I heard that his majesty was to be the arbi- 
 trator, I felt assured that the case would be thoroughly inves- 
 tigated, and that there would not be any doubt as to the result ; 
 and I confess that I was sadly disappointed to find that, from some 
 cause or other, the case had not been rightly understood by his 
 majesty. 
 
 " In the summer of 1814, the British sloop-of-war ' Thais' and
 
 brig 'Calypso' were cruizing on this station. Their commanders 
 were prudent men. When the brig-of-war ' Carnation' hove in sight 
 it was supposed to be the ' Calypso,' and no apprehensions were 
 entertained, as we felt assured that the commander would not 
 attempt to violate the neutrality of the port. But when we were 
 informed that a frigate and a larger vessel were in company, we 
 concluded that it must be the razee Plantaganet, frigate Rota, and 
 brig Carnation, under the command of Mad Lloyd * (the same that 
 made the senseless attack on Crany Island), who had been here 
 three weeks before, and had boasted that he had boats built expressly 
 for cutting out American privateers, and that he would destroy 
 them wherever he found them. 
 
 " Knowing what we had to expect, I (being then in my twenty-first 
 year) was sent by my father (consul of the United States) to recom- 
 mend Captain Reid to slip bis cable and warp his vessel close in 
 under the guns of the castle. While I was on board, the Carnation 
 anchored witbin pistol-shot of the Armstrong, the frigate about half- 
 a-mile, and the razee about a mile distant, yet under sail, it being 
 calm, and boats were passing between the English vessels. Captain 
 Reid immediately gave orders to carry into effect the advice that I 
 had communicated to him, and I came on shore ; just as I was 
 landing (ten minutes after I had left the Armstrong), I heard the 
 report of musketry ; and soon after, a Captain Smith, who had gone 
 on board to see Captain Reid, came on shore with a message from 
 the latter, informing us that, while in the act of warping in, he had 
 been approached by four boats, containing, by estimate, one hundred 
 and twenty men ; that they were warned repeatedly not to approach, 
 or that he would fire into them - r which, instead of heeding, only 
 seemed to stimulate their exertions ; and, as there could be no 
 mistake of their intention to take them by surprise, no attention 
 being paid to the warning, he had ordered his men to fire, which was 
 immediately returned from the boats, killing one man and wounding 
 
 A distinction bestowed upon him by his own countrymen.
 
 OF SAMUEL a BKID, JR., ESQ. 21 
 
 the first-lieutenant ; but, having found their reception too warm, 
 they sued for quarter, which was immediately granted (they were 
 then nearly alongside of the Armstrong). Captain Smith wa* 
 deputed by Captain Reid to request my father to take the necessary 
 steps for his protection, and I was sent in quest of the governor, 
 whom I found at Judge Arriaga's, a mile from town. I was com- 
 missioned to request him to remonstrate with Captaia Lloyd (the 
 force under his command being wholly inadequate to cope with that 
 of the British squadron) and to allow us to sead thirty-two Ameri- 
 can seamen that we had here to assist in defending the Armstrong, 
 should she be again attacked. The latter request the governor said 
 he could not grant, as it would be an infringement of the neutrality 
 on his part, but he accompanied me forthwith to town, and no time 
 was lost in dispatching one of his aids with an official remonstrance. 
 Captain Lloyd returned a verbal answer, indicative of his intention, 
 and three hours after the grand attack was made on the Arm- 
 strong, then within forty yards of the Castle. 
 
 "These simple facts require no comment, as they admit of no 
 doubt. If there could be any doubt, the character of the commander 
 is a circumstance of the greatest importance in forming a correct 
 opinion of the case. 
 
 " I send a plan of the harbor, showing the relative position of the 
 Armstrong during the first and second engagements. 
 
 " I trust that my motive in addressing you on this occasion will 
 be appreciated, and, with the highest consideration and respect, 
 have the honor to be, sir, 
 
 " Your most obedient servant, 
 
 " CHAS. W. DABNET. 
 Hon. W. L. Marey, 
 
 " Secretary of State, U. S. 
 
 " I am conversant with the French language, and, if necessary, 
 would willingly go to Paris to afford any explanation that may be 
 
 required, 
 
 " DABNET.
 
 22 BRIG GENERAL ARMSTRONG, 
 
 " I can prove that the British vice-consul, who was then residing 
 on the opposite shore of Pico, sent a letter on board the commo- 
 dore's vessel two hours before they anchored ; consequently there 
 was no necessity for ' reconnoitering ' with four boats full of armed 
 men." 
 
 " United States of America, Department of State : 
 
 " To all whom these presents shall come, greeting : 
 
 " I certify that the paper hereunto annexed is a true copy, trans- 
 cribed from and carefully collated with the original paper on file 
 in this department. 
 
 " In testimony whereof, I, William L. Marcy, Secretary of State 
 of the United States, have hereunto subscribed my name, and caused 
 the seal of the Department of State to be affixed. 
 
 " Done at the city of Washington, this first day of November, 
 A. i). 1855, and of the independence of the United States of America 
 
 the 80th. 
 
 " W. L. MARCY." 
 
 None but a true patriot none but a chivalrous, high-toned man 
 of honor, could have written such a letter. And what does this 
 glorious son of a noble sire say? He tells this government "the 
 pecuniary amount is of no consequence to us," but he " cannot allow the 
 brilliancy of that action to be tarnished, or the slightest stain to rest on 
 our national escutcheon!" It is upon this principle, sirs, that I have 
 prosecuted this claim. It is the national and individual point of 
 honor that I stand here to-day to vindicate, and I am deeply 
 indebted to Mr. Chas. W. Dabney for his assistance in enabling me 
 to sustain it. 
 
 Mr. Dabney states that, while he was on board the brig General 
 Armstrong, the Carnation anchored within pistol-shot of the Ameri- 
 can brig, and at that time, it being calm, boats were passing between 
 the English vessels. This, sirs, was a part of the suspicious move- 
 ments which Mr. Dabney's father speaks of, and which induced that
 
 ABGUMENT OF SAM C. ESIDj JR., ESQ. 23 
 
 noble gentleman, the late Hon. John B. Dabney, to send his son 
 aboard Captain Reid's brig, to advise him to warp his vessel in 
 under the guns of the Castle. We see that Captain Reid took this 
 advice, and commenced warping in his vessel, and that young 
 Dabney had hardly landed ashore from his boat when the English 
 attacked the Armstrong, and the report of musketry was heard. 
 The very position of the British vessels shows the unmistakable 
 intention of the English at the time. [Mr. Reid here demonstrated 
 on the map of the harbor of Da Horta, sent by Mr. Dabuey, the 
 position of the Armstrong during the three several attacks, and the 
 position of the English ships and boats.] The evidence is indisput- 
 able that Captain Reid took all prudent measures in his power to 
 avoid a collision, and to prevent a violation of the laws of neutrality. 
 No provocation, at that time, could have induced Captain Reid to 
 fire a gun, to jeopardize his safety, except in actual self-defence and 
 self-preservation. The very assertion on the part of the English 
 that Captain Reid commenced the attack against so overpowering a 
 force, is despicable and degrading. None but a madman would have 
 attempted it, and that madman, on this occasion, seems to have been 
 Commander Lloyd, whose own countrymen called him mad. And 
 the governor of Fayal attributes this attack to his madness, for he 
 says it was " occasioned by the madness, pride, and haughtiness of an 
 insolent British officer," and that all Fayal witnessed this act of his 
 madness ! 
 
 But if there ever was any doubt on this question before, Mr. 
 Dabney has dispelled it. He tells you that Mad Lloyd had been 
 at Fayal, " three weeks before" this affair, " and boasted that he had 
 boats built expressly for cutting out American privateers, and that he 
 would destroy them wherever he found them .'" For three weeks, then, 
 Commander Lloyd had harbored this confused design, which his 
 plain-faced knavery afterwards put into execution ! I will call your 
 Honors' attention to the particular fact that the Governor of Fayal, 
 in answer to the note of " the commander of his Britannic Majesty's 
 forces," says, " J must, however, assure you, sir, that from the accounts
 
 24 BRIG GENERAL AKMSTKONG. 
 
 which I have received, it is certain that the British boats were the first 
 to attack the American schooner." Commander Lloyd- never replied 
 to this note, from the same guilty consciousness that prevented him 
 from signing the first ; and this first paragon of a note was his 
 last, and the only document of his which graces the history of this 
 affair. Why did he not support this letter, then, with a protest, 
 signed by all his officers, as the American captain did, instead of 
 the weak and falsified affidavit of his tool Roderigo this perjured 
 Lieutenant Fausset ? The answer is found in the apology of Lord 
 Bathurst no such charge could be made 1 Not a syllable is 
 uttered against the United States, and Portugal, convicted by the 
 open declarations and recorded testimony of Governor K-ibeiro, 
 permits a period of sixteen years to elapse in silence. 
 
 IN 1835, this claim is renewed against Portugal by Gen. Jackson, 
 in the letter of Mr. Dickens to Mr. Kavanagh. At that date, she 
 did not pretend to deny her responsibility on the grounds after- 
 wards assumed. IN 1836, Mr. Forsyth is informed by Mr. Kava- 
 nagh [p. 30, Doc. 14], that the written and verbal declarations of 
 the Duke de Pamella had induced a belief that our claims against 
 Portugal would have been adjusted many months ago. The Duke 
 de Pamella had at that time [as is admitted in the letter of Count 
 Tojal to Mr. Clay, on p. 77, Doc. 53], renewed the demand for this 
 claim against the British government. IN 1837, Mr. Kavanagh 
 informs Mr. Forsyth [p. 33, Doc. 14], that Portugal considers this 
 claim inadmissible, because the force at Fayal was altogether incom- 
 petent to protect the privateer against the assailants, and mentions 
 as an off-set a large amount of property destroyed by our vessels 
 sailing under the flag of Artigas. The plea here set up of the 
 incompetency of the force at Fayal to protect the General Arm- 
 strong, was one of the very grounds complained of by Mr. Sumpter, 
 among others, in his letter to the Marquis de Aguiar [on p. 10, 
 Doc. 14], in which he said he did not wish "to enhance tho cen- 
 sures which may be due for so ntter a destitution and incapacity of 
 self-defence as have been alleged to exist at Fayal." As for the
 
 ARGUMENT OF SAM C. REED, JR., ESQ. 25 
 
 plea of compensation, or set-off, I need not tell your honors that it 
 is the admitting of one claim to counterbalance another. So, 
 even up to 1837, Portugal directly admitted her liability to the 
 claimants. 
 
 Now, if your honors please, I shall show that this claim was pro- 
 secuted from the year 1818, the administration of Mr. Monroe, 
 down to the year 1844, the administration of Mr. Polk, a period of 
 twenty-six years, without a knowledge, on the part of our govern- 
 ment, of the previous admissions of Portugal, or the existence of the 
 correspondence of 1814, which took place at Rio de Janeiro, 
 between the Marquis de Aguiar, Lord Strangford, and Mr. Sump- 
 ter. I shall show, also, that Mr. Kavanagh, our charge at Lisbon, 
 made continual inquiry of our government for this very correspond- 
 ence, from 1836, for over two years. And that, had this corres- 
 pondence at that time been produced, Portugal never could have 
 set up the defence which she afterwards did, charging that the 
 Americans first violated the neutrality of her port. And I shall 
 show, hereafter, that this very correspondence was quietly sleeping, 
 like our friend Dabney's letter, for this whole period, on the shelves 
 of the archives of the Department of State of the United States 1 
 
 In Mr. Kavanagh's letter to Mr. Forsyth, dated January, 1836 
 [on p. 29, Doc. 14], he says : "It appears that representations on 
 the subject were made, in 1814, to Mr. Sumpter, then Minister of 
 the United States near the Court of Portugal, at Rio de Janeiro, 
 and there is no record in the archives of this legation to show the 
 result thereof." 
 
 In his letter of May, 1831 [p. 34, Doc. 14], he says : "I am 
 informed that, in 1814 or 1815, General Sumpter, our minister at 
 the Portuguese Court, while it was established at Rio de Janeiro, 
 made representations of the case, and that a correspondence thereon 
 ensued between the Portuguese government and that of Great 
 Britain, but I have no knowledge of the result, and there is no 
 record of the transaction in this legation." 
 
 In his letter of September, 1831 [same page], he says : " I hare
 
 26 BEIG GENERAL ARMSTRONG. 
 
 been lately informed, by a gentleman, that a correspondence was had 
 with the British minister, in relation to the destruction of the Gene- 
 ral Armstrong, but he was unable to say how it resulted. I have 
 already stated that there are not in this legation any traces of tho 
 correspondence between the ministers of the United States (my pre- 
 decessors) and the government of Portugal, until the arrival of 
 General Dearborn, in 1822. All the archives were probably taken 
 to Brazil, when our first mission was established there, after the 
 emigration of the Portuguese Court to Rio de Janeiro, in 1801." 
 
 Again,' in April, 1838 [p. 36, Doc. 14], Mr. Kavanagh writes to 
 Mr. Forsyth : " I have, as yet, no information of what was done by 
 General Sumpter, our minister at Rio de Janeiro, in 1814 or 1815, 
 who presented the case to the consideration of the Portuguese 
 government, then established there." 
 
 Now it is evident that Mr. Kavanagh failed to recover this claim, 
 simply because he was not furnished with the correspondence had 
 at Rio de Janeiro, and which was all this time lying on the shelves 
 of the State Department ! Well, sirs, as late as November, 1842, 
 I addressed a note to the State Department [p. 43, Doc. 14], call- 
 ing its attention to this correspondence, and asking for copies to be 
 made out, but was informed that the Department could not employ 
 clerks for such purposes. [See letter, Mr. Webster to Mr. Reid, 
 p. '45, Doc. 14.] 
 
 In 1842, under Mr. Tyler's administration, this claim was again 
 urged against Portugal by Mr. Webster, in instructions to Mr. 
 Barrow. [See p. 40 and 42, Doc. 14.] Mr. Barrow addresses a 
 uote to Senor de Castro, and is informed by that worthy minister 
 that he wishes " to gather some further particulars to elucidate this 
 business ; and to that end, he will repeat the necessary orders by the 
 next packet!" [p. 47, Doc. 14.] That he would write to England 
 again, for further particulars to elucidate this business ! 
 
 I now come to an important part of the history of this case. I 
 think I can show conclusively that, at this juncture, Portugal had 
 determined to make a master-stroke of diplomacy. She knew that
 
 ABGUMENT OF SAM 0. KEID, JB., ESQ. 27 
 
 for twenty-six years this government had never once alluded to the 
 correspondence had at Rio. She knew that Mr. Kavanagh had 
 made inquiry for it at Lisbon, in vain. She knew that her safety 
 depended upon the concealment of this correspondence. She knew 
 that if this correspondence, containing the evidence of her admis- 
 sions of liability to this government, was either lost or destroyed, 
 we could not make. out our case against her ! She believed then, 
 that we had no record of De Aguiar's letters, or that of Governor 
 Ribeiro ! We had, at this time, no evidence that England had ever 
 apologized or paid indemnity to Portugal. This, then, was the 
 reason why she wished to gather further particulars to elucidate 
 this business. She wished to consult England to know if it would 
 be safe to deny her liability, upon the belief that we had no evidence 
 against her ; and well was she advised ! 
 
 Having received, by the packet, the "particulars to elucidate 
 this business," Portugal at last screws her courage to the sticking- 
 point, and, backed by England, for the first time denies this claim, 
 after a lapse of thirty years, and charges the violation of her neu- 
 trality on the Americans ! Let us examine this remarkable docu- 
 ment of Senor De Castro, which will be found on p. 48, Doc, 14, 
 dated 3d August, 1843. He says : " The accounts received " [from 
 England, of course] " all agree that the American brig, under the 
 pretext that four boats from the said British vessels were approach- 
 ing her, fired upon them, killing some of the men and wounding 
 others." 
 
 " It is alleged, on the part of the United States, that these boats 
 contained armed men, who had a hostile intention. At the same 
 time, it is affirmed, on the part of Great Britain, that they only 
 carried inoffensive men, who were going ashore from their ships, on 
 duty, and that they casually met the American brig when she was 
 preparing to leave the port of Fayal" 
 
 " The government of his Britannic Majesty, appreciating the rash- 
 ness" [this is a bad translation ; it should read "censuring the rash- 
 ness "] " with which his officers acted in a neutral port against said
 
 28 BRIG GENERAL ARMSTRONG. 
 
 brig, without first recurring to the authorities of the country, had 
 no hesitation in apologizing to the Portuguese government, and indem- 
 nifying the inhabitants of Fayal for damages sustained by the 
 firing of the British vessels." 
 
 Here is where the wily minister overleaped the bounds of his 
 sagacious diplomacy. England did not intend that he should "elu- 
 cidate this business " that far ! For, while he makes a vain endea- 
 vor to escape from the liability imposed, he tacitly acknowledges it, 
 and very clearly discloses the interference of England in this nego- 
 tiation, and the fact that Portugal would never have contested this 
 claim, but for the interposition of the known influence of England 
 to delay and ultimately defeat the recognition and payment of this 
 just demand. He asserts here, what he knew to be false, that the 
 apology and indemnification made by England was a voluntary act 
 of generosity ! 
 
 This distinguished diplomat concludes his remarkable State paper 
 with the following piece of Blair's rhetoric : 
 
 " By an analogy of reasoning, far from her Majesty's government 
 being considered as bound for any indemnity for the destruction of 
 the American brig, it would have every motive for asking and 
 expecting an apology for the attempt committed in the Portuguese 
 territory by that brig ; seeing that the first shot was unquestion- 
 ably fired by her, and that the commander did not previously have 
 recourse to the authorities of the country, which was only done by 
 the American consul after the offensive provocation was committed 
 by said brig, and that the fatal consequences were inevitable." 
 
 In this letter, Portugal for the first time admits that England 
 censured the rashness of Commander Lloyd's conduct. Count Tojal, 
 in his letter to Mr. Hopkins, 29th September, 1849 [p. 34, doc. 53], 
 reiterates it, and says, " that it is well known that the British govern- 
 ment had already, in 1817, disapproved of the conduct of Commander 
 Lloyd, thereby giving satisfaction to his Majesty's government." lu his 
 letter to Mr. Clay, 9th March, 1850 [on p. 51, doc. 53], Count Tojal 
 says : " In 1814, the government of her Britannic majesty, through
 
 OP SAM 0. BEID, JB., ESQ. 29 
 
 Lord Bathurst, the minister of foreign affairs, directed Mr. Canning, 
 ambassador at Lisbon, near the regency, to give the Portuguese 
 government a verbal satisfaction for the occurrences which had taken 
 place, and which resulted in the destruction of the privateer General 
 Armstrong, in the port of Fayal, justifying, at the same time, the 
 conduct of Commander Lloyd, in regard to the provocation given by 
 the American privateer, which was the first to fire upon the Eng- 
 lish." Again, in his letter to Mr. Clay, of 15th May, 1850 [p. 62, 
 doc. 53J, he says, "It was owing to this particular circumstance 
 that the government of his Britannic majesty neither disavowed nor 
 condemned the conduct of Commander Lloyd (as it has been asserted), 
 being of opinion, and having likewise always maintained, that the con- 
 duct of Commander Lloyd was fully justified, as a mere act of retali- 
 ation, provoked by the hostilities previously commenced by Captain 
 Reid." And, lastly, Mr. Figaniere, the Portuguese minister at 
 "Washington, in his labored argument to Mr. Clayton, urging him to 
 arbitrate this claim, and dated 9th July, 1850, the very day Gene- 
 ral Taylor died I [at p. 107, doc. 53], makes this remarkable 
 admission : 'the British government did not censure the conduct of 
 Commander Lloyd, on the ground that the neutrality of the port of 
 Fayal had been violated by the privateer's unprovoked attack on the 
 boats ; nevertheless, for the reasons above stated, an apology was 
 due from the British government, and accordingly was rendered to 
 that of Portugal I" Here Mr. Figaniere admits that Lloyd was 
 censured, but not on the ground of the privateer's unprovoked attack 
 on the boats, but on the ground of the boats' unprovoked attack on the 
 privateer ! 
 
 Sirs, it was asserted in this court, the other day, that a greater 
 opportunity was afforded to ascertain the truth from the lips of a 
 living witness than from the written declarations of a party. I do 
 not think so. For it is, after all, the language of the witness that 
 carries with it the force of truth, or the damning falsehood ! Com- 
 pare these miserable, contemptible equivocations of the Portuguese 
 ministers, based on the false statements of Lloyd and Fausset, and
 
 30 BRIG GENERAL ARMSTRONG. 
 
 instructed to that end by the English government, with the bold, 
 honest, manly statement of Charles W. Dabney. No comment is 
 necessary. 
 
 Now let us examine into the motive that induced "Mad Lloyd" 
 to violate the neutrality of Portugal. Mr. Dabney says that Lloyd 
 had been in Fayal three weeks before, and had boasted that he had 
 boats built expressly .for cutting out American privateers. In the 
 letter of the British consul, William Greaves, to the go'vernor of 
 Fayal, written on the morning of the 27th September, 1814 [p. 19, 
 doc. 14], he informs him of the intention of Commander Lloyd to 
 send the British brig Carnation to fire on the General Armstrong, 
 and says that, "if the said brig should encounter any hostilities 
 from the Castle, or your excellency should allow the masts to be taken 
 from that schooner, he would regard the island as an enemy of his 
 Britannic majesty, and treat the town and Castle accordingly." 
 The letter is a translation from the Portuguese ; but the language, 
 " allow the masts to be taken from that schooner," means, if his 
 excellency allowed the Americans to injure their vessel in her hull, 
 rigging, or masts, he would regard the island as an enemy, &c. 
 This letter shows the fixed determination of Commander Lloyd, at 
 the moment he entered the port of Fayal, to avail himself of the 
 weakness of that island and the unprotected condition of the Ameri- 
 can brig, in the presence of his formidable naval force, to capture 
 the brig without damage to her hull, rigging, or armament, and 
 make her a useful adjunct to the naval force then concentrating at 
 Jamaica, of which this squadron was to form a part, and which waa 
 destined for the expedition against Louisiana, and the capture of 
 New Orleans. To show that Lloyd's fleet did form a part of this 
 expedition, Lieutenant McKeever, U. S. N., who was taken prisoner 
 in the action of the American gun-boats, commanded by Captain 
 Thomas ap-Catesby Jones, with the flotilla of the British fleet at the 
 attack on New Orleans, was afterwards confined on board the Plan- 
 taganet, Y4, commanded by Captain Lloyd. And, according to 
 James's English Naval History, voL 6, p. 360, we find that the
 
 ARGUMENT OF SAM C, EEID, JK,, ESQ. 31 
 
 frigate Rota, Captain P. Somerville, afterwards made a combined 
 attack upon the frontier town of the state of Georgia, St. Mary's, 
 early in January, 1815. It was simultaneous with the burning of 
 this capitol, on the 24th August, 1814, that the expedition was 
 formed against Louisiana and our southern coast. Admiral Coch- 
 rane sailed from Patuxent on the 19th September, 1814, to con- 
 centrate his forces at Jamaica for that purpose. All the squadrons, 
 and the reinforcements from England, did not arrive at Jamaica 
 uutil the 24th November, 1814. Commander Lloyd had been 
 detained at Fayal some ten days. Admiral Cochrane's fleet was 
 delayed at Jamaica from the 19th to the 26th November. This is 
 from the account given of " A Narrative of the Campaigns of the 
 British Army at Washington, Baltimore, and New Orleans, by an 
 English Officer who served in the Expeditions'" [see p. 242 to 260]. 
 General Jackson arrived at New Orleans on the 2d December, 1814.- 
 Cochrane's fleet did not arrive until four days afterwards. If this 
 fleet had arrived one week sooner, nothing could have prevented the 
 British from marching into New Orleans, taking that city, and the 
 possession of the coast as high up the Mississippi river as they could 
 hold it [see Major A. L. Latour's Historical Memoir of the War of 
 1814-15, pp. 63 and 112]. This defence of the Armstrong, then, 
 evidently saved Lousiana from the hands of the British. 
 
 The motive for capturing the Armstrong, then, was a double one. 
 Not only to obtain possession of this vessel, celebrated for her 
 audacity and fast-sailing qualities (this being her fifth cruise), but 
 to use her in the shallow waters of Lake Pontchartrain and the 
 mouths of the Mississippi, in the attack on New Orleans. 
 
 Commander Lloyd cared not to violate the neutrality of the port 
 of Fayal then, when it became his interest. When did England 
 ever stop to violate public law or private right, or to commit any 
 outrage of pillage, or plunder, when it could subserve her ends ? 
 When did she ever hesitate to pervert the truth or to falsify a 
 fact? 
 
 When, sirs, she found it necessary to violate the neutrality of
 
 32 BKIG GENERAL AJSM8TRONG. 
 
 Portugal, her weakness or strength was not taken into con- 
 sideration. 
 
 The same policy is carried oat to this day. Have we not seen 
 of late the most glaring outrage committed on our territory com- 
 mitted in violation of this same solemn compact in nttcr disregard 
 and contempt of our national sovereignty in violation of the sanc- 
 tity of the holy precincts of our national capitol have we not seen 
 Mr. Crampton, the British minister, in violation of his office, his 
 honor, and of all principle, and without hesitation, violate the neu- 
 trality laws of our country ? And have we not seen a British 
 newspaper in New York, the Albion, deny the charge, and then in 
 extenuation boldly assert that Mr. Crampton acted with the per- 
 mission of Mr. Marcy a falsehood only equalled by that of Com- 
 mander Lloyd. 
 
 It was this same spirit, when this capitol was attacked, that mado 
 the British despoil the beauty of the cold, harmless marble statnary 
 yonder monument to our gallant band of .naval heroes. [Mr. Reid 
 here pointed to the naval monument in front of the capitol.] 
 
 It was this same spirit that made a British ruthless villain strike, 
 with his sword, the pen from the hand of the " muse of history " 
 (whose womanly form alone should have protected her), saying 
 that, no pen was needed to record the history of so pusillanimous a 
 navy as ours !" Afterwards the gallant Commodore Thos. ap- 
 Catesby Jones, with his own sword, erased the calumny with the 
 blood and death of that British officer at New Orleans, and sent 
 him to acknowledge the falsehood into another world !* 
 
 Sirs, the page of history still stands blurred and blotted by 
 British falsehood. Shall not, then, the pen be restored to the hand 
 of the muse, the false and disgraceful record be expunged, and a 
 fair page written, dictated by the decree of this honorable Court, 
 establishing the holy truth ? " Magnet, est verifas, et pravalebit .'" 
 
 * The British officer killed by Commodore Jones was Lieut. G. Pratt, of H. B. M. frigate Sea- 
 horse, and the marble pen which he carried with him from Washington, as a trophy, was then 
 in his writing-desk aboard of that ship 1
 
 \ 
 
 ARGUMENT OF 8 AM C. REID, JR., ESQ. 33 
 
 Well, sirs, on the 10th January, 1844, a letter, purporting to 
 have been written by Mr. A. P. Upshur, Secretary of State under 
 Mr. Polk, and signed by him, declined the further prosecution of 
 this claim, on the ground that " argument and importunity have 
 been exhausted, and this government can see nothing in the circum- 
 stance to justify or warrant it in having recourse to any other 
 weapons" [see p. 54, doc. 14]. I then urged the government not 
 to abandon this claim, aad, at all events, to reply to De Castro's 
 letter, and leave the case in a state of perpetual demand against the 
 Portuguese government [see letter of Mr. Reid to Mr. Upshur, 
 p. 54, doc. 14]. Mr. Upshur having been killed on board the 
 " Princeton," no reply was received to this letter, and the Hon. 
 Henry Johnson, United States senator from Louisiana, was informed 
 by Mr. Calhoun, who succeeded as Secretary of State, in a letter 
 dated August 5, 1844, that, " The case of the General Armstrong 
 was disposed of by my predecessor upon grounds which appear 
 to me judicious and proper. Of this Mr. Reid has been duly 
 informed, and I can see no good reason, under the circumstances, 
 for renewing the claim, or for continuing a correspondence on the 
 subject." 
 
 I think it but proper and just here to remark to your honors that 
 afterwards, in a personal interview, Mr. Calhoun denied ever having 
 written this letter, and stated that such was the pressure of busi- 
 ness in the department, that he was forced to rely on the corres- 
 ponding-clerk, as it was as much as he could do to sign letters. I 
 am of opinion, sirs, that the letter of Mr. Upshur emanated from the 
 same source. I cannot forbear contrasting this conduct of those in 
 the Department of State with a story told of Lord Castlereigh, who 
 was the Premier of England. It seems that an English officer, 
 travelling on the Continent, had, for some unjust cause, been impri- 
 soned, and his effects confiscated, which led to a long correspond- 
 ence between the two governments. A final reply having been 
 received, the British officer was called to hear the result. Seeing 
 that the officer still looked dissatisfied, Lord Castlereigh impetu- 
 
 4
 
 34 BBIQ GENEKAL ARMSTRONG. 
 
 ously said, " What would you have us do, sir ; go to war about 
 this matter ?" 
 
 " Yes, sir," replied the oflScer, promptly ; " if the reparation due 
 the honor of an officer of England, and indemnity for the injury, 
 cannot be obtained otherwise, I demand that you should go to war." 
 
 " You are right, sir," said Castlereigh ; " you shall have satisfac- 
 tion ;" and satisfaction was obtained. 
 
 The honorable coutt will perceive that these very refusals of the 
 State Department to prosecute this claim further, were afterwards 
 used in argument by the Portuguese ministers to show the weakness 
 of this demand, and to induce this government to arbitrate the case. 
 
 The State Department having abandoned this claim, and refused 
 even to reply to De Castro's letter, Senator Johnson, of Louisiana, 
 introduced a resolution in the Senate, calling for all the correspond- 
 ence and documents relating to the claim and the causes which 
 retarded its adjustment. Under that resolution, the correspondence 
 contained in Document No. 14 was published in December, 1845. 
 Then came to light, for the first time since these despatches had 
 been received, the proceedings had at Rio de Janeiro, in 1814, 
 which Mr. Kavanagh had in vain so repeatedly called for ! 
 
 This correspondence was referred to the Committee on Foreign 
 Relations of the United States Senate, which reported on the 19th 
 May, 1846 [1st sess., 29th cong.], through Mr. Atherton. After 
 reviewing all the facts of the case, the committee, in commenting on 
 De Castro's letter, say : 
 
 " It is destitute not only of probability, from the situation of the 
 privateer in the presence of a British squadron, but it is disproved 
 by all the correspondence and documents, and has not even a 
 shadow of foundation. 
 
 " In addition to this, it is a position entirely new on the part of 
 the Portuguese authorities, assumed, for the first time, by them, 
 nearly thirty years after the events occurred, and not only never 
 assumed, but repeatedly negatived by them, when the facts were 
 recent and well known."
 
 ARGUMENT OF SAM C. KEID, JB., ESQ. 35 
 
 " Adverting to the fact that no reply has been made to the letter 
 of Senor de Castro, the committee would suggest the subject for 
 the consideration of the Department of State, to decide whether 
 further proceedings may not be called for in the case." 
 
 I will now call the attention of this honorable court to the report 
 of the Committee on Naval Affairs of the United States Senate, 
 made in January, 181*7, 2d Session of the 14th Congress. This 
 committee, after a full investigation of the case, at that time, said : 
 
 " It is the duty, no doubt, of all governments to extend to the 
 person and property of the citizen all the protection in their power. 
 It is the end of all governments to do so. It is the right of the 
 citizen to make known his wrongs to his government, and it is the 
 duty of the government to seek redress by such means as it may 
 deem expedient. The neutrality of Portugal was grossly violated 
 in the case of the private armed ship General Armstrong, It was 
 the duty of that government to preserve her neutral character, and 
 to protect the brig and all on board from any hostile attack, while 
 in her port." 
 
 "In principle, the committee can see no distinction between a 
 private armed ship and a merchant ship ; nor between property 
 captured and converted to the use of the captors, and property 
 destroyed by a third party omitting to do its duty." 
 
 So far back, then, as 1817, it was the opinion of the Senate of 
 the United States, and expressly charged, that England had com- 
 mitted the breach of neutrality, and the responsibility of the 
 government of Portugal for all loss occasioned by such breach is 
 expressly averred. 
 
 But, sirs, let us go further back, and see how many administra- 
 tions have acknowledged the justice of this claim ; because it is 
 asserted in the brief of the learned solicitor that but one adminis- 
 tration ever acknowledged it. 
 
 We find that under the administration of Mr. Madison, who 
 served two terms, Mr. Monroe acknowledged it. Under the admin- 
 istration of Mr. Monroe, who served two terms, Mr. Adams acknow-
 
 36 BRIG GENERAL ARMSTRONG. 
 
 ledged it. Under the administration of General Jackson, Messrs. 
 McLane, Dickens, and Forsyth acknowledged it ; and under the 
 administration of Mr. Tyler, Mr. Webster acknowledged it. Here, 
 then, for twenty-eight years, there was a continual acknowledg- 
 ment, on the part of this government, of the justice of this claim, 
 besides two solemn admissions and declarations on the part of the 
 Senate of the United States, the last which recommended its 
 reference back to the Department of State, notwithstanding the 
 expressed opinions of those in the Department, that " argument and 
 importunity had been exhausted," and that they could see no good 
 reason, under the circumstances, for renewing the claim, or for con- 
 tinuing a correspondence on the subject !" 
 
 But suppose this claim never had been recognized by the govern- 
 ment until General Taylor's administration, the action then taken, 
 npon a clear understanding of all the facts and evidence, is conclu- 
 sive. It was on those facts that General Taylor determined to 
 assert the national honor on the admissions of Portugal and Eng- 
 land, and not on the representations of the claimants, that he 
 determined to procure justice, cost what it would. He was a 
 soldier, sirs, and knew well how to protect the honor of his 
 country I 
 
 It must be recollected that there were a number of claims besides 
 this, the justice of which Portugal had as tenaciously denied, that 
 caused this determined action, and called forth the high-toned, dig- 
 nified, but firm language of that great American statesman, Mr. 
 John M. Clayton, in his letter of instruction to Mr. Geo. W. Hop- 
 kins, of the 20th April, 1849. I will read a few extracts : 
 
 " Sir : Your despatch of the llth nit. was received here on the 
 9th inst. I have submitted it to the President, and represented 
 and explained to him the very unsatisfactory condition in which 
 the claims of citizens of the United States upon the Portuguese 
 government have been permitted to remain many of them for a 
 long series of years, in spite of the repeated remonstrances of the 
 American government, and the untiring efforts of successive diplo-
 
 ARGUMENT OF BAM 0. HEED, JR., ESQ. 37 
 
 matic representatives from this country, who have, under instruc- 
 tions, again and again vainly appealed to the government of Portu- 
 gal for their adjustment and liquidation. These appeals have been 
 encountered by harassing delays, until at length the patience of the 
 claimants and of their government has become exhausted. Reluct- . 
 ant, nevertheless, to take any steps which might, by possibility, 
 hazard the amicable relations of the two countries, and clinging 
 still to the hope that Portugal is not obstinately, bent upon closing 
 her ears against a friendly power, by perpetrating the wrongs of 
 which we complain, the President considers his accession an auspi- 
 cious moment to make one more appeal to Portugal. 
 
 44 The injustice done as, and the delay of redress, would justify 
 the severest animadversion in speaking of these outrages, which of 
 late seem to have increased in number and magnitude, in a direct 
 proportion to the impunity with which they have been hitherto 
 inflicted. In the intercourse of nations, there is, and ought to be, 
 a limit to such ill-treatment, beyond which endurance ceases to be a 
 virtue. That limit, it is believed, will soon have been reached, if 
 Portugal shall still continue to be deaf to our just complaints. 
 The responsibility must needs rest with her, if the American govern- 
 ment should be forced, by a sense of duty and of self-respect, into 
 ulterior measures to enforce its demand. These measures, indeed, 
 which a due regard to national honor may thus render necessary, 
 belong, as you will understand, to the consideration of a distinct 
 branch of the government. 
 
 " The oldest case of wrong, and the most remarkable, is that of 
 the privateer General Armstrong, Captain S. C. Reid, destroyed in 
 1814 by a British squadron, under the guns of the Portuguese for- 
 tress which protects the harbor of Fayal, after a defence as gallant 
 and memorable as any act recorded iu naval annals. 
 
 44 It is revolting to contemplate such a succession of unfriendly 
 acts ; exhibiting a studied course of conduct inconsistent with the 
 relations which ought to subsist between Christian powers. It is 
 high time that the just indignation of the American government
 
 38 BEIG GENERAL ARMSTRONG. 
 
 should be aroused and directed towards the protection of the rights 
 of these, our suffering citizens. 
 
 " It is under these circumstances here rather adverted to than 
 unfolded in detail that the President has resolved to make one 
 more attempt to procure satisfaction for American claimants, and 
 to assert the national honor ; and in this resolve, it will be your 
 duty to convince the Portuguese government that he is in earnest, 
 and will not be turned aside from his purpose. You will impress 
 upon Portugal the idea that, on entering upon the duties of his high 
 office, as Chief Magistrate of the United States, the President 
 determined that he would assert the rights of his fellow-citizens 
 upon foreign governments ; proceeding upon the principle, often 
 avowed by our government, ' to make no demand not founded in 
 justice, and submit to no wrong.' 
 
 "Yon will make it distinctly understood that the period of pro- 
 crastination has gone by, and that immediate decision is demanded. 
 Further delay will be construed into denial. It is in contemplation 
 to lay before Congress the result of this final appeal, at an early 
 period of the next session. Should it so happen, unfortunately, 
 that a satisfactory answer be denied or withheld, until the arrival 
 of the period for making the purposed communication, the subject 
 will then be submitted to that body, as it shall at the time stand ; 
 and the Portuguese government may rest assured that any mea- 
 sures which Congress, in their wisdom, may decide upon as due to 
 our citizens and country, will be faithfully carried out by the 
 Executive. 
 
 " In presenting this view of the subject to the Portuguese 
 government, as a frank avowal of a fixed determination on the part 
 of the United States government, you will be most careful to repre- 
 sent, at the same time, the extreme anxiety of the President to 
 avoid being forced to suspend or interrupt present diplomatic rela- 
 tions with Portugal ; because a recourse to that measure would, 
 most probably, prove to be but the antecedent to reprisals." 
 
 Sirs, no American can read this language without an innate thrill
 
 ARGUMENT OF SAM 0. REID, JR., ESQ. 39 
 
 of admiration ! This acton, on the part of Mr. Clayton, was the 
 result of cold, dispassioned reflection. He had thoroughly investi- 
 gated the case. He had closely analyzed all its features and prin- 
 ciples. He had carefully weighed all the evidence ; he had calmly 
 reviewed all its legal bearing under the code of nations ; and that 
 distinguished jurisconsult, Castlereigh-like, resolved to maintain the 
 honor of our country, and the rights of our citizens. He deter- 
 mined that all these claims should be paid, or he would accept the 
 payment of none. They had at this time agreed to pay all the 
 other claims, without reference to their justice or injustice, if Mr. 
 Clayton would consent to arbitrate the Armstrong claim. But 
 Mr. Clayton well knew their subtle policy, and was aware of the 
 secret intrigues of England. Mr. Bulwer, the British Minister, had 
 called on Mr. Clayton, and urged the acceptance of the offer made 
 by Portugal ; but Mr. Clayton rebuked his impertinent interference, 
 for he well knew that if he held out, that Portugal would eventu- 
 ally pay this claim with the rest. 
 
 We have seen, by the correspondence of Messrs. Hopkins and 
 Clay with Count Tojal, that the latter unwittingly disclosed the 
 fact of England's acknowledged admissions of her guilt, by the 
 apology of Lord Bathhurst and the indemnity of Lord Castlereigh, 
 which was pretended by De Castro to have been an act of magna- 
 nimity, instead of the result of a peremptory demand. No other 
 proof than thT was necessary to establish the liability of Portugal. 
 To this day, Portugal has never abandoned the claim against Eng- 
 land for the loss of this vessel. When asked, by Mr. Hopkins, if it 
 was ever abandoned, and when ? Count Tojal remains silent ! And 
 I defy any one to show that England has ever, officially or in any 
 manner, denied that Lloyd had not first violated the neutrality of 
 the port of Fayal. No, sirs ; Lord Bathhurst and Lord Castle- 
 reigh were both well aware of the fact, and the only evidence to 
 the contrary to be found, in all the record, is Lloyd's letter to 
 Governor Ribeiro, steeped in damning falsehoods ; as for his poor 
 tool, Lieutenant Fausset ; it is but charity to pass over. But if
 
 40 BRIG GENERAL ARMSTRONG. 
 
 Lieutenant Fansset was fight, where, then, I demand, was Eng- 
 land's official charge against Captain Reid ? 
 
 Mr. Clay makes a demand for the correspondence between Por- 
 tugal and England which led to the apology and indemnification 
 from Great Britain : Count Tojal again silently refuses to comply ! 
 What does Mr. Clay say on this occasion ? In his letter of 2d 
 November, 1849 [on p. 46, Doc. 53], he remarks : 
 
 "Your Excellency cannot mean to assert the deposition of Lieut. 
 Fausset to be an information obtained and procured by the act of 
 insisting upon this claim by the United States government ; nor that 
 the Portuguese government was not in possession of it a very short 
 time after the occurrence to which it relates ; any such idea is 
 negatived by the date which the instrument bears the 27th Sept., 
 1814 ; and it is fair to presume that it was before both the Portu- 
 guese and the British governments, when the former demanded, and 
 the latter accorded satisfaction for the outrage. 
 
 "Your Excellency has not thought proper to state either by 
 whom the informations have been furnished, or in what they consist, 
 by means of which it is now sought to invalidate all the testimony 
 worthy of credit upon the claim, and to stultify the conduct of the 
 then sovereign of Portugal. Supposing these informations, if any 
 such exist, may be found in the correspondence which has taken 
 place between the governments of Portugal and that of Great 
 Britain, and anxious to give them all the consideration which they 
 may merit, and which may be necessary to the most perfect under- 
 standing of the whole subject, the undersigned submits a request for 
 copies of all the papers presented by her majesty 1 s government, contain- 
 ing the diplomatic correspondence and evidence which led to the conces- 
 sion of an apology and indemnification from Great Britain. If this 
 be refused, the government of the United States will be justified in 
 believing that, in the prosecution of that branch of the demand 
 against the British government, it was maintained and proved by her 
 majesty's government that Commander Lloyd was the aggressor, and 
 the American claimants the injured parties."
 
 ARGUMENT OF SAM C. EEID, JK., ESQ. 41 
 
 Now, I ask, why was not this correspondence produced, and the 
 negotiation conducted on fair and open, honest terms ? Because, it 
 would have proved that Lloyd was not believed by his own govern- 
 ment, and it would have denounced him a liar, which the statement 
 of Governor Ribeiro had already shown ! To shield the falsehood, 
 her Britannic majesty sends an official letter to her faithful majesty, 
 stating that, the assertions in regard to such censures were entirely des- 
 titute of foundation ! Not that he did noi, violate the neutrality of 
 the port no official letter on that point but that he was not ceu- 
 sured. The gross misrepresentations on this point, and the miserable 
 decrepitude of truth on the part of both England and Portugal, are 
 such, that I leave it for this honorable court to decide if either are 
 entitled to belief ? 
 
 It must be admitted that it was a most one-sided negotiation 
 they having had the benefit of all our correspondence, even to the 
 private, letters between the Department and the claimants, while we 
 were kept entirely in the dark ! 
 
 On the peremptory demand being asserted to Portugal, she pro- 
 posed to pay all the other claims, if the United States would agree 
 to arbitrate the General Armstrong claim. General Taylor 
 peremptorily refused, in accordance with his previous fixed determi- 
 nation " to assert the rights of his fellow-citizens, and to make no 
 demand not founded in justice, and to submit to no wrong." 
 
 Final instructions were then sent by Mr. Clayton to Mr. Clay, in 
 the dispatch of the 8th March, 1850 [p. 68, doc. 53], which says : 
 " In regard to a reference of our claims to an arbiter, which has 
 been indicated, the President has directed me to say that no such 
 course will, under the circumstances, receive his sanction, and this for 
 reasons too obvious to need enumeration. 
 
 " The ship-of-war sent to convey these instructions and to receive 
 the answer to them, will await a reasonable time for the answer, 
 and if, by or within that period, satisfaction is not given, and due 
 provision made for the payment of our citizens, you are ordered to 
 demand your passports and return to the United States."
 
 42 BBIG GENERAL AEM8TJSONG. 
 
 Mr. Clayton has been charged with bullying Portugal, and 
 threatening to declare war against her, if she did not pay these 
 claims. No such accusations can for a moment be sustained. In 
 hiSj letter to Mr. Hopkins he expressly states, "These measures, 
 indeed, which a due regard to national honor may thus render 
 necessary, belong, as you will understand, to the, consideration of a 
 distinct branch of the government." 
 
 Again, he says, " It is in contemplation to lay before Congress the 
 result of this final appeal at an early period of the next session" The 
 whole matter, then, was to be submitted to the Congress of the 
 United States for its decision, and this charge of threatening Por- 
 tugal with war was but the reiteration of the English press, which 
 went so far, even, as to substitute England for Portugal in meeting 
 the responsibility of rejecting this claim at all hazards. The United 
 States was taunted with the injustice and want of magnanimity dis- 
 played in the demonstration of a naval force to demand the payment 
 of this claim. And yet this magnanimous England, and her Ameri- 
 can adherents, were well aware of the fact that the waves had 
 hardly covered over the track of her own national ships from the 
 shores of helpless Greece, whom she forced to pay a trumped-up 
 demand, without a shadow of right or justification ! Portugal, thus 
 encouraged and sustained by England, refused to comply with the 
 demand, and Mr. Clay took his passports and left in the war-steamer 
 Mississippi for France. 
 
 On the 9th July, 1850, a great calamity befell the nation, and the 
 claimants, by the death of General Taylor. Mr. Fillmore became 
 President of the United States. Mr. Webster succeeded Mr. 
 Clayton as Secretary of State, and three days afterwards, about the 
 23d July, he agreed with Mr. Figaniere to arbitrate this claim 1 
 
 I contend, here, that there was no power that had a right to 
 reverse the decision of General Taylor, who had prepared to submit 
 the case to Congress for its decision, any more than it was contended 
 we could not reverse the decision, or refuse to obey the decree of 
 Louis Napoleon I
 
 AKGTJMEKT OF SAM 0. EEID, JK., ESQ. 43 
 
 The fiat of this great republic had gone forth to the world. This 
 government had plighted its national faith and honor, and solemnly 
 declared that it would never consent to arbitrate this claim. No 
 power on earth had the right or the authority to reverse this deci- 
 sion bat Congress. It had passed out of the functions of the State 
 Department, and the case stood appealed to the Congress of the 
 United States. No succeeding administration had any control or 
 jurisdiction over the case. Such was the unanimous opinion of the 
 Committee on Foreign Affairs of the United States House of 
 Representatives, at the first session of the 33d congress, composed 
 at that time of some of the most distinguished jurists of the coun- 
 try. Such was the opinion of the celebrated attorney-general, 
 William Wirt, in the cases of Pottinger and Spense [see Opinions 
 of the Attorneys-General of the United States, vol. 1, p. 486]. 
 Thus was the honor and faith of the government repudiated for the 
 first time, and this great and glorious Republic made to stand in 
 shame, before the eyes of the nations of the world, in the humiliating 
 and degrading position of having asserted the national honor, and 
 afterwards sullied it by a retraction 1 
 
 But, may it please this honorable Court, while I do not question 
 the reason or the motive of Mr. Webster in agreeing to submit this 
 case to arbitration, I do not hesitate to say that I believe he com- 
 mitted a great error of judgment. His was certainly not an act of 
 "intrinsical indifference," "without which," says Puffendorf, "all the 
 morality of human action is inevitably overthrown." The reason why 
 jMr. Webster agreed to refer this claim to arbitration was that he 
 felt perfectly confident that Louis Napoleon, as President of the 
 Republic of France, would decide in our favor. I know this, because 
 he told me that no man could decide the case against us. 
 
 Mr. Webster may be censured for this act, but I cast no reflec- 
 tions on his character. Daniel Webster has erected for himself a 
 superstructure of grandeur, over which the fixed meridian sun of 
 his genius will shine resplendent for ever, and on which, no act or 
 error of his past life, can for a moment cast the slightest shadow I
 
 44 BRIG GENERAL ARMSTRONG. 
 
 I shall now proceed to evidence to your honors under what cir- 
 cumstances the government of the United States accepted the 
 proposition of Portugal to arbitrate this claim, and the nature of 
 that proposition, which Mr. Clay had not only been instructed 
 peremptorily to reject, but to enforce the payment of this particular 
 claim. 
 
 In the letter of Count Tojal to Mr. Clay, of the 6th July, 1850, 
 replying to the final demand of this government, is presented this 
 extraordinary proposition : 
 
 " The government of her majesty, animated with the same desire 
 which the government of the United States professes, to maintain, 
 without interruption, relations of good harmony and intelligence 
 between the two countries, yields to the force of circumstances, and, 
 without again reverting to the justice or injustice of the claims presented 
 by the government of the U. S., and only pro bono pads, offers to 
 pay the said mentioned claims, amounting to $91,727, according to 
 Mr. Clay's account, with the only exception of that of the privateer 
 General Armstrong. 
 
 " In respect to this claim, the undersigned cannot deviate from 
 the proposal heretofore made to Mr. Clay, that of so important a 
 claim being submitted to the decision of a third power, &c." 
 
 It is true, that, at first blush, no exceptions can be taken to the 
 diplomatic language here used, as well as to the manner in which 
 the proposition is put. But on a closer examination, the infamy 
 concealed under it is plain and palpable. And, sirs, what is the 
 induction? Why, it is this, " if you will surrender the chastity of 
 your honor, by agreeing to arbitrate the "General Armstrong" 
 case, we will pay all the other claims, without reference to their jus- 
 tice or injustice !" This is no morbid or forced construction, because, 
 antecedent to this proposition, the wily minister makes this decla- 
 ration : 
 
 "Her majesty's government, far from denying justice to the 
 government of the United States, always proposed, in the respective 
 answer to each claim, to refer them to arbitrators, as the most decor-
 
 ARGUMENT OF SAM C. BEID, JK., ESQ. 4:5 
 
 ous and adequate mode to resolve these claims." The motive for 
 resisting this claim, and which induced Portugal to make this propo- 
 sition, is distinctly declared in the following sentence : 
 
 " Her majesty's government, besides the arguments contained in 
 the notes formally addressed to the government of the United 
 States, finds its judgment, and the manner of weighing the question of 
 the privateer General Armstrong, strengthened with the opinion of 
 her Britanic majesty's government, which has always deemed this claim 
 of the United States unjust!" 
 
 In reply to this proposition, Mr. Clay, in his letter of the 1th 
 July, 1850, states, " that the instructions of his government do not 
 allow him to entertain any proposition which has not for its object 
 the adjustment and Jinal settlement of all the said claims without 
 exception ; he therefore declines to accede to the proposition of his 
 excellency as above stated, to pay all the other claims except that 
 of the General Armstrong, and to refer it to arbitration." 
 
 Again, in his final letter of the llth July, 1850, demanding his 
 passports, Mr. Clay says : '" This proposition does not admit the 
 justice of any single one of the claims to which it refers, but merely 
 states, as above quoted, that the government of her most faithful 
 majesty is willing, for the sake of peace, impelled by the force of cir- 
 cumstances, and without considering their justice or injustice, to pay 
 
 
 
 some of rftem." This language shows that Mr. Clay well under- 
 stood the infamy contained in the proposition, and that the terms 
 for the sake of peace concealed the offer of the purchase-money for the 
 dishonor of our government 1 
 
 I wish here to substantiate the fixed and determined resolution 
 on the part of General Taylor, as made known to the Portuguese 
 government, under no circumstances to consent to arbitrate this 
 claim. While the negotiation was being conducted at Lisbon, Mr. 
 Figaniere, the minister resident at Washington, was duly advised 
 of all the proceedings, and had, in the meantime, opened a corres- 
 pondence with Mr. Clayton. In reply to a letter of Mr. Figaniere, 
 urging a reference of this case to a third power, Mr. Clayton, on
 
 46 BRIG GENERAL ARMSTRONG. 
 
 the 30th April, 1850 [p. 97, doc. 53], said : "The undersigned, in 
 conclusion, is compelled to add that, should the Portuguese govern- 
 ment persevere in the refusal to adjust and settle what are believed 
 to be the incontrovertible claims of American citizens upon that 
 government, the only alternative left to the President will be imme- 
 diately resorted to the submission of the whole subject to the decision 
 of the Congress of the United States, whose final determination as to 
 the mode of adjustment will have all its appropriate and legitimate 
 influence upon the course of the executive." 
 
 Again, on the 19th June, 1850 [p. 186, doc. 53], in reply to 
 Mr. Figaniere's trumped-up and obsolete reclamations on this 
 government, as a set-off against our demands (and which shows the 
 weakness of his defence), Mr. Clayton says: "In conclusion, sir, 
 I beg leave to repeat to you the assurance contained in my note of 
 the 30th May last, ' that the just claims of the citizens of this coun- 
 try upon Portugal will lose none of the merit which characterizes 
 them, nor any portion of that protection which this government has 
 determined to extend to the claimants, by the resuscitation of such 
 unfounded pretensions." 
 
 In a private letter [marked F] from Mr. Clayton to myself, dated 
 June 25, 1852, he says : " General Taylor refused, to the last moment 
 of his life, to submit the Armstrong claim to arbitration. 1 ' 
 
 Now, if the honorable court please, I shall demonstrate that in 
 consenting to submit this claim to arbitration, the government 
 accepted and received a bonus in consideration therefor. The 
 official letter of Mr. Webster to Mr. Figaniere, of the 5th Sept., 
 1850 [p. 112, Doc. 53], expressly declares it. He says: "The 
 President instructs me now to say that, sincerely Dishing to pre- 
 serve relations of amity with Portugal, and to bring pending ques- 
 tions to an immediate close, the government of the United States 
 accepts Count TojaVs ' offer, 1 in behalf of his government, to pay the 
 several claims, as stated in Mr. Clay's note ; and the proposition made 
 by the same authority, to refer the case of the General Armstrong to 
 arbitration," The first article of the Convention, afterwards made,
 
 ARGUMENT OF SAM C. EEID, JE., ESQ. 47 
 
 also expresses it. It states that the Queen of Portugal "has 
 assented to pay to the government of the United States a sum equi- 
 valent to the. indemnities claimed for several American citizens (with 
 the exception of that mentioned in the fourth article), and which 
 sum the government of the United States undertakes to receive in full 
 satisfaction of said claims, except as aforesaid, and to distribute the 
 same among the claimants." 
 
 We have seen that Portugal not only objected to this claim, on 
 pretended principles of law, but to all the claims, on the same 
 grounds of inadmissibility, which she likewise urged the United 
 States to arbitrate. All these claims were apparently equally 
 objectionable to her, and as firmly resisted as the Armstrong case. 
 Then, why was it that the offer was not made to pay this claim and 
 refer the others to arbitration, as she had yielded to the force of dr+ 
 cumstances, and, for the sake of peace, was willing to pay all the other 
 claims, just or unjust ? Because, sirs, England had forbidden her, 
 and, as a mere dependency of Great Britain, she did not dare to 
 disobey her. In the language of Count Tojal, who cringingly sup- 
 plicates Mr. Clay to separate this from the other claims, on the 
 infantile plea and mortifying admission that "The subsisting rela- 
 tions between her most faithful Majesty, and that of her Britannic 
 Majesty, oblige him to communicate to the British government all that 
 had taken place!" [See p. 77, Doc. 53.] What does this reveal ? 
 It reveals that England had instructed Portugal to pay all the 
 other claims, provided we would agree to arbitrate this one (she 
 well knowing that no power in Europe would decide in our favor), 
 and not to pay any of the other claims, only on the condition, and 
 in consideration, that we would arbitrate the Armstrong claim 1 
 Now, sirs, what was the offer, on the part of Count Tojal, that the 
 President accepted ? Was it a simple offer to pay all the other 
 claims, without reference to the Armstrong claim ; or was it a con- 
 junctive proposition ? If it was not a conditional offer, why did 
 Mr. Clay refuse to accept it before he left Lisbon ? Because, he 
 tells you, his instructions did not allow him to entertain any proposi-
 
 48 BRIG GENERAL ARMSTRONG. 
 
 lion which had not for its object the adjustment and final settlement 
 of all the claims, without exception! Will it be pretended for a 
 moment that it was an unconditional offer to pay all the other 
 claims, whether we consented to arbitrate this claim or not? 
 Would Portugal ever have consented to pay those claims, if we had 
 refused to arbitrate this one ? No, sirs, never and the proof is 
 irrefragable that, in consenting to arbitrate it, we received a bonus 
 in the payment of the other claims. On this point, alone, I contend 
 that the government is responsible to the claimants. 
 
 We next charge that the agreement to arbitrate this claim was 
 made and entered into without our knowledge or consent. It is 
 shown that, on the 5th day of September, 1850 (the very day I 
 wrote from New Orleans to Mr. Webster), the President's accept- 
 ance of Count Tojal's proposition was officially communicated to 
 Mr. Figaniere ; and about the 23d of July, 1850, the proposition 
 had been verbally accepted. What is Mr. Clayton's testimony on 
 this point ? In the debate on this bill in the Senate, January 26th, 
 1855, Mr. Clayton said : 
 
 " Well, sir, at this crisis, when all the other claims were about to 
 be paid and I verily believe this was also about to be paid the 
 President died. Within three days after my successor went into 
 office, he agreed to refer the claim to the Prince Louis Napoleon. 
 I know that, because he called upon me, and, in the course of the 
 conversation, notified me that he had made that arrangement with 
 Mr. Figaniere, the Portuguese minister. The proposition to refer 
 had been made to me repeatedly. It seemed as if they were willing 
 I should choose the arbiter. They offered to refer it to three civi- 
 lians, or to one civilian, or to any crowned head in Europe. I 
 refused. I thought the circumstances of the case so clear against 
 that government, and her conduct so atrocious, that there ought to 
 be no reference of a claim which was so clearly right." 
 
 Again, he said : " In this case, the claim was referred to the 
 arbitration without the consent, and without the knowledge of the 
 claimant. He had not the slightest information that such a thing
 
 AEGITMENT OF SAM C. REID, JR., ESQ. 4:9 
 
 vras in progress. The papers show exactly the opposite of wbat the 
 honorable Senator [Mr. Fessenden] contended for in this respect. 
 Within three days after the matter came into the hands of my suc- 
 cessor in the office of Secretary of State, he agreed to refer it. I 
 know this, of my own knowledge. At that very moment, the 
 claimant was confidently expecting that his claim would be paid. 
 Other claims had been given up, and he had every reason to sup- 
 pose that this, also, would be paid. The claimant wrote to the 
 Department for information, and received the answer which was 
 read by my friend from Mississippi [Governor Brown], that the 
 claim had been referred. Afterwards, the treaty was made, in pur- 
 suance of an arrangement, long before agreed on, between Portugal 
 and this government ; and the reference was confirmed." 
 
 And again, Mr. Clayton said : "It will be remembered that 
 President Taylor died on the 9th July, 1850. On the 18th or 20th 
 July, Mr. Webster became Secretary of State. About the 23d 
 July, the Portuguese minister and the Secretary of State agreed to 
 refer the Armstrong case to the arbitration of Louis Napoleon, on 
 the ground, as I was informed by Mr. Webster, that "he was the 
 President of a Republic. The letter that was read by the Senator 
 from Mississippi (Governor Brown), to which my friend referred, 
 containing the remonstrance of Captain Reid against the reference, 
 was dated the 26th of Aug. Another letter (of Mr. Reid), asking 
 an opportunity to be heard before the negotiation should be settled, 
 was dated in September. The question had then been determined j 
 there was an end of it ; and he could not possibly do anything 
 about it." 
 
 Then, on the 23d of August, 1850, two weeks before the Presi- 
 dent's official acceptance of the terms had been communicated to Mr. 
 Figaniere, and before the rumor was made public, Mr. Clay was 
 solicited by Mr. Webster to return to Lisbon, and conclude the 
 bargain, which, for reasons highly honorable and worthy of Mr. 
 Clay, he declined. 
 
 But still it is asserted that we acquiesced in this arbitration ! 
 
 5
 
 50 BRIG GENERAL ARMSTRONG. 
 
 Now, sirs, what is acquiescence ? According to Noah Webster, it 
 is a quiet assent a silent submission, or, a submission with apparent 
 content. Capt. Reid, in his letter, dated at New York, 26th August, 
 1850, to Mr. Webster, says : " By the recent daily journals, rumors 
 are rife that the claim of the General Armstrong is about to be' 
 referred to some foreign power for arbitration. This mode, at best, 
 being considered somewhat problematical, we, the claimants, would 
 respectfully suggest, whether or not a settlement by treaty, or con- 
 yention, may not in your opinion be preferable, as being most likely 
 to enable us to obtain our demands without the risk of a failure ?" 
 Mr. Webster replies to this letter, on the 29th August, 1850, that, 
 " after due consideration, it has been deemed proper to accept the 
 offer of the Portuguese government to pay all our claims, excepting 
 that of the Armstrong, &c." This due consideration took place 
 more than a month before Capt. Reid had ever heard it! And did 
 Mr. Webster, at that time, write to Capt. Reid, or any of the 
 claimants, to consult them or advise them on the subject ? No, 
 sirs, they were not taken into consideration. I wrote afterwards, 
 from New 'Orleans, on the 5th September, 1850, requesting the 
 Department " to make no final arrangement in this case," and 
 requesting it " to be left open until I could have a conference," and 
 hoping that " no steps would be taken which would compromise the 
 rights of the claimants until I could see Mr. Webster." In reply, 
 I was informed that the offer had already been accepted, and the fact 
 announced to the Portuguese minister ! Can this be tortured into 
 a quiet assent, or a silent submission 1 But for a further explanation 
 of these terms, I refer to Count Tojal. Sirs, there can be no acqui- 
 escence, no consent after the committal of an act of wrong, of injury, 
 or violence. The victim of innocence cannot consent, cannot acqui- 
 esce, after the perpetration of an act of violence. The householder 
 cannot consent after the crime of arson has been committed. What 
 folly, then, to talk of an acquiescence before an act is even known 
 to be in contemplation, or after its consummation, without a know- 
 ledge df its existence , the very essence of consent is the yielding
 
 AKGUMENT OF SAM C. REID, JB., ESQ. 51 
 
 of the mind to a proposition laid bare to it, and there can be no 
 consent where the will is not consulted, 
 
 I consider that the Hon. Mr. Marcy, in his letter to Hon. J. M. 
 Mason, Chairman of the Committee on Foreign Relations of the 
 * U. S. Senate, dated llth Feb., 1854, lays down the true doctrine 
 governing this principle. He says : " I cannot countenance the 
 principle that, where this government is called A by a citizen of the 
 United States to interpose for the purpose of recovering claims 
 against any other government, proceeds in good faith^for that purpose, 
 and fails in its object, or obtains what may be regarded as an inade- 
 quate indemnity, it places itself in a situation to be called on to pay 
 the claims, or to satisfy the expectations of the claimants. Our 
 government is but an agent in such cases, and unless it acts against 
 the express or known wishes of those who have invoked its interposition, 
 it does not, as I conceive, incur any liability whatever to the claim- 
 ants." It is true, this letter was written at the time, with a view 
 other than that of sustaining the claimants' position, but I shall turn 
 it to good account. And now, I ask, were the proceedings had in 
 submitting this claim to arbitration in accordance with good 
 faith for that purpose ? Were they not in violation of the good 
 faith of the nation pledged not to arbitrate this claim ? They most 
 certainly were. And did it not " act against the express and known 
 wishes of those who had invoked its interposition," by informing them 
 that their objections and suggestions were too late, and afterwards, 
 by concluding and ratifying a treaty which had been agreed upon 
 before that interposition could, by any possibility, have been invoked ? 
 
 Again, sirs, after this treaty was made, I transmitted an argu- 
 ment, in behalf of the claimants, to the Department of State, 
 requesting that it might be forwarded to our minister at Paris, with 
 all the documents therein referred to, in order that the claimants 
 might be properly heard before the arbiter. [See letters of Mr. 
 Reid to Mr. Webster, marked B and C.] The department refused 
 the hearing, on the ground that the terms of the treaty did not 
 permit of it. I then asked to be permitted to present the case to
 
 V2 BBIG GENERAL AKMSTKONG. 
 
 our minister at Paris, Mr. Rives, and that, through him, the claim- 
 ants might be represented. And was informed by Mr. John J. 
 Crittenden, on the 29th September, 1851, that "it is not competent 
 for this Department to invest you with any manner of authority to 
 present an argument in the case of the General Armstrong 5 nor* 
 indeed to interfere in any way with the mode of submitting the case 
 to the arbiter, pr^rided for by the 3d article of the convention." 
 [See letter marked D.] Did not the government here again act 
 moat palpably " against the express and known wishes of those who 
 had invoked its interposition ?" I hold, therefore, that the doctrine 
 of Mr. Marcy is perfectly sound on this point. 
 
 I wish, here, to show a strange inconsistency on the part of the 
 opposers of this claim; While it is contended, on the most weak 
 and shallow testimony, that England did not violate the neutrality 
 of Portugal, and that we did acquiesce to the arbitration, they 
 attempt to evade the responsibility of Portugal, and the government 
 of the United States, based on impregnable evidence, because of its 
 insufficiency I But I shall leave the honorable court to determine 
 on the weight of this evidence, with the single remark, that had it 
 been laid before the Senate, the treaty would never have been 
 ratified. 
 
 Let us now, for a moment, take into consideration this treaty, or 
 convention, by which the rights of the claimants were bartered 
 away. Upon examination, it will be found that it was drawn up 
 without a strict regard to the protection of the rights of the 
 claimants, and that it was made in violation of all principles 
 of justice, and of all rules governing arbitration. The great 
 feature containing the very essence of arbitration, the hearing 
 and determining upon the law and the facts, was entirely omitted 
 and unprovided for. [See Civil Code of La., title 19, p. 461] 
 By the third article of the treaty, it will be seen that the evidence 
 of the case is confined and limited to the " correspondence" which 
 has passed between the two governments and their respective repre- 
 sentatives, and that, under that article, the claimants were not only
 
 AJiGUMENT OF SAMUEL 0. EEID, JR., ESQ. 53 
 
 denied a hearing, but the most important and essential documents, 
 consisting of Captain Reid's protest, Consul Babney's letter, and 
 all the correspondence of " 1814," were entirely excluded and 
 omitted. To establish this fact, I refer the honorable court to the 
 letter of Mr. Webster to Mr. Hadduck, charge at Lisbon, dated 
 March 20th, 1851 [p. 85, Doc. 53], in which he says : " I have just 
 had a conference with Mr. De Figaniere, and it has resulted in my 
 determining to yield to his wishes, that the papers in the case of the 
 General Armstrong may be transmitted to your charge," &c. 
 " Whea the consent of the arbiter, whichsoever of the two it may 
 be, shall have been obtained, you will proceed to carry into execu- 
 tion the stipulation of the third article of the convention ; viz., to 
 compare and authenticate, jointly with the Portuguese government, 
 the copies therein specified. You will understand, of course, that thes* 
 copies are ' limited' to such communications as have passed between 
 the American Legation and the Portuguese government at Lisbon, 
 and between this Department and the Portuguese Legation in 
 Washington," &c. It will be remembered, that on the tth July, 
 1851, I solicited the Department to forward my argument, and thi 
 documents therein referred to, to our minister at the court of France. 
 This communication caused the Department to examine and to inquire 
 into the instructions just read, as to what documents had been 
 stipulated upon to be submitted to the arbiter. It was then found 
 that the whole of the correspondence of " 1814" had been omitted, 
 which caused the following letter to be written expressly by the De- 
 partment to Mr. Hadduck, dated I%th July, 1851 [p. 86, Doc. 53], 
 for the purpose of correcting this great oversight. " To provide, how- 
 ever, against the omission of any important part of the earlier portion of 
 the correspondence, I mean that which passed in 1814 and 1815, in 
 Rio Janeiro, where the court of Portugal, at that time, resided, and 
 which, it could not have been intended to exclude, I transmit to you 
 herewith a printed copy of the correspondence, as communicated to 
 Congress, on the 15th December, 1845." Well, sirs, just one month 
 and three days before Mr. Webster signed that letter, the protocol
 
 54: BRIG GENERAL ARMSTRONG. 
 
 had been concluded at Lisbon, and sent off to Paris, without inclod 
 ing this evidence, and here is the proof of it. Mr. Hadduck, in hia 
 letter, dated Lisbon, July 17th, 1851, to Mr. Webster, says : " Sir, 
 I have the honor to inform you that, on the 9th of June, I met her 
 majesty's Minister of State and Secretary of Foreign Affairs, at the 
 Foreign Office, for conference on the subject of the protocol." * * * 
 " With these slight alterations, the instrument was signed ttnd sealed 
 by us on the day of the conference. I have informed our minister at 
 Paris of these proceedings." Now, on an examination of the pro- 
 tocol [marked No. 1], it will be seen that no particular correspon- 
 dence, or evidence, is specified therein, to be laid before the arbiter, 
 while it contains a clause to " bind the respective governments, and 
 all parties interested, to submit to the judgment and decision of said 
 arbiter." This very clause, or stipulation, according to the doctrine 
 of Mr. Marcy, then, creates, of itself, a responsibility on the part of 
 this government to the claimants, in case the claim was wrongfully 
 or improperly submitted. And the refusal, on the part of this 
 government, to allow the claimants to be heard through their 
 minister, by a written argument, being in direct conflict with the 
 law governing arbitration, attaches and fixes on this government 
 the duty and obligation to indemnify the claimants, which cannot 
 be overthrown. 
 
 But may it please the honorable court, my province has simply 
 been to argue this case upon the facts, and I shall leave it for my 
 learned and distinguished compeers, who will follow me, to sustain 
 the principles of this cause upon legal authorities. It is sufficient 
 for me to say, that the most distinguished Senators of the last ses- 
 sion of Congress, the most eminent statesmen and jurisconsults, 
 Messrs. Cass, Clayton, Bell, Brown, Bayard, Dodge of Iowa, 
 Douglas, Foot, Houston, Jones of Iowa, Reid, Rusk, Seward, 
 Thompson of New Jersey, Weller, Wright, And others, supported 
 and advocated this claim, on the principles I have maintained before 
 your honors, it having passed the Senate to a third reading by a 
 majority of five. And I refer this honorable court to the powerful
 
 ARGUMENT OF 8AM C. BETO, JR., ESQ. 55 
 
 and conclusive argument, on this point, of the Honorable Senator 
 Bayard. 
 
 Senator Dawson, of Georgia, who took the opposite side of this 
 question, thought otherwise. This great publicist and learned com- 
 mentator on international law, thought we should have looked to 
 England at the time for indemnification, and that we had no right 
 to call on Portugal ! This advocate of Louis Napoleon and his just 
 decree was of opinion that the claimants had no right to be heard, 
 and that his imperial majesty, Louis Napoleon, was not to be expected ' 
 to condescend to listen to the argument of a humble citizen of the 
 United States ! The learned senator, on reflection, deemed it pru- 
 dent to suppress this portion of his speech. But, sirs, the Hon. Jas. 
 A. Bayard, who had denounced this award as atrocious, a senator 
 distinguished for his profound ability, demanded to know from the 
 Georgia senator what panoply and majesty covered this high poten- 
 tate of France that he could not condescend to be instructed by an 
 argument ? He was told, sirs, that if Chief-Justice Marshall could 
 be instructed, and the Supreme Court of the United States have 
 changed their opinions by condescending to hear argument of coun- 
 sel, there was nothing in the character of this Emperor of France 
 that prevented him from being instructed as well. 
 
 The honorable ex-senator from North Carolina, Mr. Badger, who 
 was opposed to this claim, had the temerity to rebuke Mr. Bayard 
 for denouncing the award, because it was charging Louis Napoleon 
 with being either stupid or corrupt. The learned ex-senator, in 
 arguing a cause before this honorable court, the other day, admitted 
 that senators and congressmen frequently made speeches for Bun- 
 comb, and this may have been a buncomb remark of his. Is it not 
 strange, sirs, how circumstances act upon the human will and warp 
 the judgment of the human mind ? Is it not remarkable that a 
 senator upon the floor should not be able to see and understand a 
 clear principle of law and equity, which, as a, feed attorney before a 
 court, he urges, not only with a conviction of truth, and declares his 
 solemn belief, but tells you, to use his own language, that here he
 
 OO BRIG GENERAL ARMSTRONG. 
 
 has " no dark corners in a district to dread to prevent him from 
 doing justice !" What a melancholy and humiliating admission to 
 have made, and how repugnant to the feelings which should actuate 
 senators, who are the judges of the realm and the great conserva- 
 tors of the rights of the people of this Union ! 
 
 And now, sirs, let us examine the finding of this award of Louis 
 Napoleon. Supposing it to have been made by the distinguished 
 civilians o France, they certainly cannot plead ignorance of the 
 rules of arbitration. Have they done their duty even as marked 
 out under the lame articles of the convention and protocol ? Where 
 is their decision on the public law in the case ? Not one word upon 
 the point submitted. Where is there a decision on any single fact 
 stated ? Why, sirs, the case is decided upon an entire different 
 theory from that raised either by Portugal or the United States. 
 The award says, " considering that if it be clear that, on the night 
 of the 26th September, some English long-boats, commanded by 
 Lieut. Robert Fausset, of the British navy, approached the Ameri- 
 can brig, the General Armstrong, it is not certain that the men who 
 manned the boats aforesaid, were provided with arms and ammunition. 
 That it is evident, in fact, from the documents which have been exhib- 
 ited, that the aforesaid long-boats, having approached the American 
 brig, the crew of the latter, after having hailed them and summoned 
 them to be off, immediately fired upon them, and that some men 
 were killed on board the English boats, and others wounded some 
 of whom mortally without any attempt having been made on the 
 pant of the crew of the boats to repel at once force by force /" 
 
 This statement is entirely novel, and wholly at variance with the 
 position assumed both by England and Portugal, who only con- 
 tended that but one boat was unarmed, while the award considers it 
 uncertain that any of the boats were provided with arms and ammu- 
 nition! Why, sirs, they were not even guided by Lieutenant 
 Fausset's deposition. Can this decision, then, be said to be based 
 on any principle of law, upon the evidence placed before this court, 
 or upon any reason or common sense ? I am confident it cannot,
 
 ARGUMENT OF SAM C. REID, JR., ESQ. 57 
 
 and there is not a court on the face of the earth that would decide 
 that this award is just. It is conclusive, therefore, that the cor- 
 respondence of " 1814" never was before the arbiter. For therein 
 it is seen that, instead of all the boata being unarmed, and no 
 attempt being made to repel force by force, the fire was simul- 
 taneous on the part of both, and that the first-lieutenant of the 
 American brig was wounded, and one man killed. Then, when they 
 found the evidence to be imperfect, why did they not act like just 
 men, and call for further testimony ? Because, sirs, justice was not 
 to be expected of a man who had become a perjured President, by 
 violating his oath and trampling on the constitution of his country ! 
 What Guniker writes to Ligurinus may well be applied here : 
 
 " When falsehood bare and undisguis'd appears, 
 It never can deceive ; but when it wears 
 The garb of truth, it cheats the heedless ears 1" 
 
 It became the duty, then, of this government, under the protest 
 of the claimants, to set aside this award, if it did not wish to incur 
 responsibility to the claimants ; but, having confirmed the award, 
 she confirmed her responsibility, and there is no escape from this 
 conclusion. But if this award now precludes the claimants by its 
 decision, as has been contended, then why, I ask, did not the deci- 
 sions of Congress, the decisions of the different administrations, and 
 the settled and fixed decision of President Taylor, asserted on the 
 national honor, in face of the world, before preclude the reference 
 to arbitration ? It was repeated to Portugal, that the " Presi- 
 dent of the United States would never compromise the dignity of 
 the republic, nor abandon the just rights of his fellow-citizens to 
 attain any end !" Was there not a greater Tiolation of good faith 
 in reversing the decision of President Taylor, and sacrificing the 
 national honor, than there would have been if the government had 
 merely reversed the decision of the perjured Louis Napoleon ? 
 
 It was asserted on the floor of the Senate, in opposition to this 
 claim, that it would be a dangerous precedent to establish, to make
 
 58 BKIQ GENERAL AKMSTBONG. 
 
 the government responsible to its citizens for any act of its officers 
 in the conduct of a national affair, which compromised their rights, 
 and that no such act can be binding on the government. Why, sirs, 
 do we not see the government daily holding its citizens responsible 
 for their acts, and are we, in this free and enlightened Republic, to 
 bo told, in the language of tyranny and oppression, that " the king 
 can do no wrong !" that there is no responsibility resting on this 
 government towards its citizens? Such a doctrine strikes at the 
 very sub-stratum of the compact on which the confederacy of this 
 Union was formed. We know, that, in forming the confederacy, 
 each State gave up a portion of its rights and sovereignty to the 
 general government, in consideration of its obligation and responsi- 
 bility to protect, maintain, secure, and defend the rights of its citi- 
 zens. I find, sirs, in the proceedings of the Congress of the Confe- 
 deration, an address to the several States, prepared by Mr. Madison, 
 Mr. Ellsworth, and Mr. Hamilton, adopted 26th April, 1183, 
 holding this language : 
 
 Let it be remembered, finally, that it has ever been the pride and 
 the boast of America that the rights for which she contended were 
 the rights of human nature. By the blessings of the author of these 
 rights on the means exerted for their defence, they have prevailed 
 against all opposition, and form the basis of thirteen independent 
 States. No instance has heretofore occurred, nor can any instance 
 be expected hereafter to occur, in which the unadulterated forms of 
 republican government can pretend to so fair an opportunity of 
 justifying themselves by their fruits. In this view, the citizens of 
 the United States are responsible for the greatest trust ever confided 
 to a political society. If justice, good faith, honor, gratitude, and all 
 the other qualities which ennoble the character of a nation, and fuljill 
 the ends of government, be the fruits of our establishments, the cause 
 of liberty will acquire a dignity and lustre which it has never yet 
 enjoyed, and an example will be set which cannot but have the most 
 favorable influence on the rights of mankind. If, on the other side, 
 our government shall be unfortunately blotted with the reverse of
 
 AKGUMENT OF SAM C. BEID, JK., ESQ. 59 
 
 these cardinal and essential virtues, the great cause which we hare 
 engaged to vindicate will be dishonored and betrayed, the last and 
 fairest experiment in favor of the rights of human nature will be 
 turned against them, and their patrons and friends exposed to be 
 insulted and silenced by the votaries of tyranny and usurpation." 
 What a commentary is this upon the act of the government in deny- 
 ing to the claimants the rights of human nature ? I appeal to this 
 honorable court, and ask, whether "justice, good faith, honor, gra- 
 titude, and all the other qualities which ennoble the character of a 
 nation," do not demand that the claimants should be indemnified by 
 their government ? But if there be no responsibility in this case, 
 upon what principle, then, is the forced construction of an act of a 
 citizen, construed into an acquiescence and a responsibility to release 
 this government ? The illustrious General Washington said, in his 
 farewell address, "It is indeed little else than a name, where the 
 government is too feeble to withstand the enterprises of faction, to 
 
 , 
 
 confine each member of the society within the limits prescribed by the 
 laws, and to maintain all in the secure and tranquil enjoyment of the 
 rights of persons and property." What a shadow, what a thing of 
 air becomes this government, then, when all these cardinal and 
 essential virtues become reversed, exposing the claimants to be 
 insulted and^ilenced by the votaries of tyranny and usurpation ! 
 
 Sirs, under the Constitution, Congress alone has the power to 
 declare war, and make rules concerning captures on land and water. 
 We have made our own code of the law of nations in this regard 
 and what is the doctrine as laid down by General Washington ? In 
 the case of the British ship Grange, captured by the French frigate 
 L' Ambuscade, within the capes of the Delaware, in 1793, the Pre- 
 sident then said : " Rather than employ force for the restoration of 
 certain vessels which I deem the United States bound to restore, I 
 thought it more advisable to satisfy the parties by avowing it to be 
 my opinion that, if restitution was not made, it would be incumbent 
 on the United States to make compensation." It will not be 
 denied, but that this decree of Louis Napoleon is cruelly disgraceful
 
 60 BRIG GENERAL ARMSTRONG. 
 
 and unjust. And what is its effect? The government of tha 
 United States is placed in the mortifying and humiliating position 
 of having prosecuted and supported by its honor an unjust claim for 
 thirty-five years, founded only on falsehood. This it is made to 
 acknowledge by receding from the high ground it had taken, and 
 consenting to submit the honor of the country and the rights of the 
 claimants to arbitration. It stamps Captain Reid and his officers, 
 and Mr. Dabney, the consul, as convicted perjurers, and elevates 
 an act of infamy on the part of England to the purity of truth. 
 And yet it is said, this decree is final, and the record must 
 stand! . 
 
 Sirs, was this case submitted to the people of this Union to-day, 
 their unanimous voices would denounce this decree, and declare 
 justice to the claimants. In this spirit I ask you to refer to the 
 very preamble of the Constitution, which in itself constitutes an 
 appeal to your equity, and covers the history of this case. That 
 preamble guarantees and secures justice, that justice which we seek. 
 That preamble embodies and contains the very essence of the Con- 
 stitution of the United States, " ESTABLISH JUSTICE," not law, which 
 is but a poor substitute. To insure domestic tranquillity, and in 
 providing for it the common defence, thereby promoting the general 
 welfare, and securing the blessings of liberty to those who perilled 
 their lives to establish it not for themselves, but for posterity, we 
 ask JUSTICE at your hands. 
 
 May it please this honorable court, my task is done. You have 
 before you the full history of a case, wherein the claimants have 
 been for nearly half a century gradually sinking under wrong and 
 injustice, until life's hope expiring, many of them have died with it 
 unrequited but by the grave. It was not considered by them, 
 whether they spilt one drop of blood, or their whole heart's blood, 
 in defending the honor of their country, and should it now be con- 
 sidered by this honorable court, whether a precedent can be found 
 to guide ^ au, while you have the Constitution and the eternal truth 
 to sustain you in decreeing JUSTICE ?
 
 ARGUMENT OF PAM c. KEID, JE., ESQ. 61 
 
 And I now submit this cause, leaving it to this honorable court 
 to determine whether the stain of infamy shall be obliterated, the 
 honor of our countrymen maintained, and the truth of history vin- 
 dicated, or whether the damning and atrocious record of the decree 
 of Louis Napoleon shall remain in the archives of the national State 
 Department, as the only monument, erected by this government, in 
 gratitude and commemoration of the act of this heroic Spartan 
 band.
 
 BRIG GENERAL ARMSTRONG, 
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 
 
 COUNSEL FOR CLAIMANTS, IN THE CASE OF THE PRIVATEER BRIG GENERAL 
 ARMSTRONG. COURT OF CLAIMS, 28TH AND 29lH NOV., 1855. 
 
 May it please your Honors 
 
 After the lengthened narration of the facts and diplomatic cor- 
 respondence connected with this case, to which your attention has 
 already been called, I feel that I should make some apology for 
 consuming still more of your time in a further investigation of the 
 point, that the neutrality of the port of Fayal was invaded by the 
 British fleet, under Commodore Lloyd, and that the conduct of 
 Captain Reid, commanding the privateer General Armstrong, was 
 not only distinguished by the highest gallantry, but justified on the 
 principle of self-defence. The interest of this question cannot be 
 over-estimated, whether we regard it as determining the character 
 of what our people have heretofore considered one of the brightest 
 pictures of the last war, or affecting the right of the claimants, as 
 now presented to your* Honors. My apology, if one be needed, 
 must be rested upon these considerations. 
 
 The testimony shows that the transaction occurred between eight 
 and nine o'clock at night ; the brightness of the moon enabling all 
 its incidents to be observed by the citizens of Fayal and a number 
 of strangers, who lined the shores of that beautiful bay. [Dabney's 
 and Captain Reid's letters.] 
 
 In the protest, drawn up on the day the transaction terminated, 
 27th September, 1814, it is stated that, during the afternoon of the
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 63 
 
 26tb, while employed in taking on board water, and about sunset 
 of that day, the British brig of war Carnation, Captain Bentham, 
 appeared suddenly doubling round the northeast point of the port. 
 She was immediately followed by the Rota, 38 guns, Captain 
 Somerville, and the 74-gun ship Plantagenet, Captain Robert Lloyd 
 (commanding the squadron). They all anchored about seven o'clock, 
 and, soon after, some suspicious movements on their part, indicating 
 an intention to violate the neutrality of the port, induced Captain 
 Reid to order his brig to be warped in shore, close under the guns 
 of the castle ; that in the act of doing so, four boats approached 
 his vessel, filled with armed men. Captain Reid repeatedly hailed 
 them, and warned them to keep off, which they disregarding, he 
 ordered his men to fire on them, which was done, and killed and 
 wounded several men. The boats returned the fire, and killed one 
 man and wounded the first lieutenant ; they then fled to their ships, 
 and prepared for a second and more formidable attack. 
 
 The second attack, after midnight, with 12 or 14 boats, is then 
 narrated, which resulted in the total defeat and partial destruction 
 of the boats. The loss of the Americans being " one lieutenant and 
 one seaman killed, and two lieutenants and five seamen wounded." 
 The third attack, at daybreak, is then described, and after protest- 
 ing against the said Lloyd for his " infamous attack," and against 
 the government of Portugal for failing " to protect and defend the 
 neutrality of their port," the protest is sworn to by Captain Reid, 
 Frederick A. Worth, first lieutenant (brother of our late gallant 
 General), Robert Johnson, third lieutenant, Benjamin Starks, sail- 
 ing master, John Brosnaham, surgeon, Robert E. Allen, Captain 
 of Marines, and four other prize masters of said brig. 
 
 These statements are fully corroborated by the letter of our then 
 consul, Mr. Dabuey, to the Secretary of State, 5th October, 1814 
 (American State Papers Naval Affairs, 494), and the letter of 
 Captain Reid, 14th October, 1814, to be found in the same vol., 
 495. These letters are still more minute than the protest, in 
 describing the details of events which brought on the first engage-
 
 64 BBtO GENERAL A&MSTBOHCL 
 
 ment, and establish beyond a doubt, if credited, that the brig 
 Armstrong acted wholly on the defensive. In Mr. Dabney's letter, 
 written " nine o'clock at night," to the Governor of the Island, he 
 complains that "his Britannic Majesty's ships had ordered four or five 
 armed boats to surprise and carry off the American armed schooner 
 General Armstrong, which ia lying here under the guua of the 
 castle, on the protection of which che regarded herself absolutely 
 ia security." But if any doubt could exist upon this point, it would 
 be removed by the letter of Charles W. Dabney, our present consul, 
 21st May, 1853, written to the Secretary of the State (and on file 
 in his department), in a spirit of patriotic indignation, on hearing 
 of the award made on this claim. He says that, being at the time 
 about 21 years of age, he was sent by his father to recommend Capt. 
 R. to warp his brig under the guns of the castle, his father appre- 
 hending danger as soon as he discovered that Lloyd's fleet was in 
 the bay ; " that the order was immediately given by Captain Reid, 
 and he went ashore. He then says : "Just as I was landing, ten 
 minutes after I left, I heard the report of musketry. A Captain 
 Smith, who had gone on board to see Captain Reid, came on shore 
 with a message, informing us that, while in the act of warping in, 
 they were approached by four boats, containing by estimate one 
 hundred and twenty men ; that they were warned repeatedly, not to 
 approach, or that he would fire into them, which, instead of heed- 
 ing, only seemed to stimulate their exertions, and as there could be 
 no mistake of their intention to take them by surprise, no attention 
 being paid to their warning, the Captain had ordered his men to 
 fire, which was immediately returned from the boats, killing one man 
 and wounding the first lieutenant, but having found their reception 
 too warm, they sued for quarter, which was immediately granted. 
 They were then nearly alongside the Armstrong." The whole of 
 this letter is full of instruction upon the point now in issue, and is 
 now for the first time made public. An accidental conversation with 
 a naval officer, recently from Fayal, having just led to the knowledge 
 of its existence. The high character which the writer enjoys in this
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 65 
 
 and all foreign countries, invests his statements with a value which 
 cannot be over-estimated. 
 
 It will be remarked, that the protest is sworn to by all the officers 
 save one. We have the fact that the first lieutenant was wounded 
 in the first engagement ; here was an important circumstance sworn 
 to by the officer himself, corroborated by the others. A still more 
 palpable fact was, that one seaman was killed. If these things are 
 not true, all these officers have committed willful perjury. They 
 are not circumstances that could be misstated by inadvertence, and 
 yet the English defend themselves on the allegation that their boats 
 were unarmed. The omission of the name in the affidavit of the 
 second lieutenant corroborates the statement that he was killed, and 
 it will be remembered, as lending great strength to these state- 
 ments, that they were made dura fervet opus Captain Smith was 
 an eye-witness, and narrated the events before the smoke of the 
 battle had been blown away. There was, therefore, no time for any 
 pre-arrangement of a falsehood, if we could suppose the parties vile 
 enough to intend one, or so foolhardy as to attempt misrepresenta- 
 tion of a scene witnessed by nearly " all Fayal." 
 
 Thus far, may it please your honors, we have referred to American 
 witnesses, but we have the testimony of the Portuguese officials 
 entirely confirmatory of their truth. In the letter of the governor 
 to his superior, of the 28th September (Doc. 14, p. 12), he writes, 
 that, having received, at ten minutes past nine, of the 26th, a note 
 from the American Consul, "I went directly to the castle, and 
 having been informed of the circumstances which led to these hostile 
 proceedings, I learned that a boat had been sent from the British 
 ships-of-war to examine the privateer, and on its return three others 
 had been sent, armed, and that the captain of the privateer not 
 wishing to allow them to come on board his vessel, a fire was begun, 
 on loth sides, the result of which was, that the second officer of the 
 privateer was wounded, and two English were killed, and seven 
 wounded." From the position of the castle, jutting out into the 
 bay, as described in the chart, from the Secretary of State's office, 
 
 6
 
 60 BBIG GENERAL ARMSTRONG. 
 
 its occupants had a most excellent opportunity to witness distinctly 
 the order of events ; and it is from Portuguese witnesses we have 
 the fact, that the boats attempted to board the privateer, that the 
 fire which ensued came from both sides, and that three boats 
 approached while one was returning. 
 
 But the positive terms of harshness in which the governor speaks 
 of the conduct of the British commander is more conclusive than 
 any narration of details. He describes -it as " a horrible and bloody 
 combat, occasioned by the madness, pride, and haughtiness of an inso- 
 lent British officer, who would not respect the neutrality maintained 
 by Portugal." In a similar strain is the subject treated by the 
 Marquis de Aguiar in his letter to Lord Strangford, Dec. 22, copy 
 enclosed to our minister Mr. Sumpter [Doc. 14, p. 21]. " Ou a 
 perusal of these papers his excellency will observe the outrageous 
 manner in which that commander violated the neutrality his royal 
 highness had resolved to maintain during the war, by audaciously 
 attacking the American privateer General Armstrong, in the port of 
 Fayal, under the guns of the Castle, &c. His excellency will also 
 observe the base attempts of the British commander, at the time he 
 commenced the unprovoked attempt on the American privateer, to 
 attribute those violent measures to the breaking of the neutrality on the 
 part of the Americans, in the first instance, by repelling the British 
 armed barges that were sent for the purpose of reconnoitering that 
 vessel, advocating, with the most manifest duplicity, that they were 
 consequently the aggressors. But what appears still more surprising 
 is the arrogance with which the British commander threatened to 
 consider the territory of his royal highness as enemies, should the 
 governor adopt any measures to prevent them from taking possession 
 of the American privateer, which they subsequently plundered and 
 set on fire." 
 
 When it is considered by the court how dependent was the rela- 
 tion of Portugal to England, and how reserved and cautious JS the 
 general tone of diplomatic correspondence, these outbursts of indig- 
 nation against this "insolent British officer" afford evidence of the
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 67 
 
 highest degree that the truth of the American version had been 
 made good by such sources of information as left the marquis no 
 alternative but its full recognition. The marquis not only denounces 
 the British commander, but the governor himself. " The censurable 
 moderation of the governor during these outrages would have 
 induced his royal highness to have immediately caused a process to 
 have been instituted for the punishment of that officer, did not the 
 idea of his having been governed by a wish to guard the inhabitants 
 of that island from the ravages and evils which the British com- 
 mander would not have failed to commit, merit his royal consi- 
 deration." 
 
 Such language, so bold and outspoken, cannot fail to convince 
 your honors, that when these transactions were fresh, and before the 
 finger of English diplomacy had been thrust into this negotiation, 
 the aggressive conduct of the British officer at Fayal was as unre- 
 servedly admitted by the Portuguese as it was strenuously insisted 
 on by the Americans ; and more especially when it is remembered 
 that it was directed against a government to whose generosity, 
 energy, and wisdom, the Portuguese governor declares his people 
 " owe, in a great measure, if not wholly, the fruits of peace." [Doc. 
 14, p. 12.] 
 
 Acting on these well-ascertained facts, Portugal insisted upon an 
 apology and indemnity from the English government, and received 
 them in 1811 and 1818 ; but no line of complaint was ever addressed 
 to the American government upon this subject. 
 
 Subsequently, and when the influence of the British government 
 made itself felt in Portuguese diplomacy, an attempt was made to 
 break the force of this important admission of the English by deny- 
 ing the conclusions which it was seen would inevitably be drawn 
 from it. Our minister, Mr. Clay, in reply to this denial, then asked 
 for an inspection of the correspondence which had passed between 
 the Portuguese and English governments, that it might be fully 
 seen what loere the grounds assumed and conceded for this apology 
 <ud indemnity ; and concluded by declaring that, if the correspond-
 
 68 BfilG GENERAL 
 
 ence were not produced, he would consider it as proved that it 
 would show Lloyd to have been the aggressor. In all the subse- 
 quent correspondence, the Portuguese ministers make not even the 
 slightest allusion to this request. [Doe. 5%, p. 46.] 
 
 The presumptions necessarily arising out of the faets of the case 
 are no less strong in favor of the claimants than is the direst evi- 
 dence. Chief among these are 1st, The disparity between the 
 forces engaged rendering it improbable that so weak a vessel should 
 draw upon itself a contest which could not result otherwise than in 
 its destruction. 
 
 2d. The approach, in the night time, of four armed boats from a 
 hostile fleet, without a flag of truce, or other indication of a pacific 
 character. 
 
 These presumptions "are the result of the general experience 
 of a connection between certain facts or things, the one being 
 usually found to be the companion or the effect of the other/ The 
 connection (it is admitted) is not so intimate, nor so nearly universal, 
 as to render it expedient that it should be absolutely and impe- 
 ratively presumed to exist in every case, all evidence to the contrary 
 being rejected ; but yet it is so general, and so nearly universal, that 
 the law itself, without the aid of a jury, infers the one fact from the 
 proved existence of the other, on the absence of all opposing evi-- 
 dence. [1 Greenleaf Evidence, sec. S3.] 
 
 This rule is not unknown to the law of nations, as will be seen in- 
 the case of the Atlanta, 6 Rob. Adml. Rep. 440, where a neutral 
 vessel, carrying despatches of the enemy, it was held as a conclusive 
 presumption that they were hostile [see also The Pizarro, 2 Wheat, 
 227, 242 ; The Hunter, 1 Dods. Adm, 480], 
 
 Opposed to all this accumulated proof, is the. British account, 
 contained in the letter of Captain Lloyd to the governor of Fayal, 
 and the affidavit of Lieutenant Fausset and some of his crew. In 
 the former it is stated " that one of the boats of his Britannic 
 majesty's ship under my command was, without the slightest provo- 
 cation, fired on by the American schooner General Armstrong, in
 
 KEPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 69 
 
 consequence of which two mea were killed and seven wounded. In 
 consequence of this, I am determined to take possession of that 
 vessel, and I hope that you will order your forts to protect the force 
 employed for that purpose." It is important that your honors 
 should observe that this was the response to the letter of the 
 governor, dated "10 o'clock at night," for if it be established that 
 prior to that hour more than one boat had encountered the brig, 
 then its silence as to others would be a fraudulent suppression of 
 the truth. It will also be observed, that, in his letter no mention is 
 made of any circumstances explanatory of the object or mission of 
 the boat of the Plantagenet, then lying at anchor a mile from the 
 privateer. This omission is supplied in Fausset's deposition, though 
 it equally ignores the existence in this contest of any but "one 
 boat." 
 
 This deposition, dated 21th September, 1814, is found in Mr. 
 Clay's letter to Count Tojal [Sen. Doc. 53, p. 42], and states 
 " that, on Monday, 26th inst., about eight o'clock in the evening, he 
 was ordered to go in the pinnace or guard-boat, unarmed, on board 
 her majesty's brig Carnation, to know what armed vessel was at 
 anchor in the bay, when Captain Bentham, of said brig, ordered him 
 to inquire of said vessel (which by information was said to be a 
 privateer). When said boat came Dear the privateer, the Ameri- 
 cans hailed and desired the English boat to keep off, or they would 
 fire upon her j upon which Mr. Fausset ordered his men to back 
 astern, and with a boat-hook was in the act of doing so, when the 
 Americans, in the most wanton manner, fired into said English boat, 
 killed two and wounded seven, some of them mortally, and this not- 
 withstanding said Fausset frequently called out for quarters ; said 
 Fausset solemnly declared that no resistance of any kind was made, 
 nor could they do it, not having any arms, nor of course sent to 
 attack said vessel. Also several Portuguese boats at the time of 
 said unprecedented attack were going ashore, which it seems were 
 said to be armed." We will pass over the singular construction of 
 ihis deposition by which the deponent changes his narrative from
 
 70 BBIG GENERAL AKM8TRONG. 
 
 the first person, and speaks of himself as " Mr. Fausset" and " said 
 Fausset ;" and again changes from the present tense, " and solemnly 
 declared," &c. We also pass over the singular paragraph with 
 which it concludes, all tending to raise serious doubts as to its 
 genuineness and fairness. In this affidavit we find that the trans- 
 action is confined to the privateer and "one boat." Not the slight- 
 est mention is made of any other English boats having been fired 
 into, or in any way involved in an encounter with the brig. The 
 motive of the approach by this " one boat " is declared to have been 
 to make an inquiry merely ; and as the order was to inquire of the 
 " Carnation," one of the English fleet, it is somewhat singular that 
 Fausset should have been " ordered to go unarmed." The deposi- 
 tion particularly emphasizing the word " unarmed." 
 
 The statement of the motive of the approach made it necessary 
 to limit the number to " one boat." The deposition, therefore, is 
 very clear that there was only "one boat" that boat a mere 
 " pinnace," and " unarmed." 
 
 That this is false has already been shown ; that the lieutenant 
 knew it to be false, is seen in the miserable attempt to bring into 
 the scene of action " several Portuguese boats at the time going ashore, 
 and which it seems were said to be armed" It is hardly necessary to 
 say that, if Captain Reid had fired into Portuguese boats and killed 
 and wounded their men, we should- certainly have seen something 
 of it in the letter of the governor of the Azores ; at any rate, some 
 representation, if not demand for reparation, would have reached 
 our government. This attempt to account for a number of boats, 
 miserable as it is, is important, as showing what at the time 
 was pressing upon the mind of this officer as a difficulty neces- 
 sary to be overcome to wit, that there were other boats in hi& 
 company. 
 
 Your honors will observe that, from the date of the letter from the 
 Marquis de Agniar to Lord Strangford, enclosed to our minister, 
 Mr. Sumpter, Dec., 1814, we received no communication from the 
 Portuguese government until that of Senor de Castro's addressed
 
 REPORT OF THE SPEECH OF P. PHILLIPS, E8Q. 
 
 to Mr. Barrow, on the 3d August, 1843. [Doc. 53., p. 14.] This 
 was in reply to Mr. Kavanagh's note, of 17th February, 1837, and 
 Mr. Barrow's note, 26th May and 10th October, 1842. After near 
 six years' delay, the minister makes a response, in which, after express- 
 ing his surprise at the appearance of this claim, " after a silence of 
 so many years," he says that " the necessary orders were given to 
 proceed to the most exact examination, from which some delay has 
 occurred in this answer." It was impossible, without them, to obtain 
 a thorough knowledge of a case represented in said notes under such 
 serious circumstances." 
 
 Having thus made this "exact examination,"^ says : "The accounts 
 received all agree that the American brig, under the pretence that 
 four boats, from the said British vessels, were approaching her, fired 
 upon them, killing some of the men, and wounding others. 
 
 " It is alleged, on the part of the United States, that these boats 
 contained armed men, who had a hostile intention. At the same 
 time, it is affirmed, on the part of Great Britain, that they only car- 
 ried inoffensive men, who were going ashore from their ships off duty, 
 and that they casually met the American brig when she was preparing 
 to leave the port of Fayal." 
 
 The great and controlling fact alleged by the American officers is 
 thus, after the most "exact examination," found to be true by the 
 Portuguese minister ; and the value of this finding is enhanced by 
 the consideration that it was stated by one who was seeking every 
 means to defeat their claim. 
 
 Having thus determined that the brig was approached by "four 
 boats" it became necessary to abandon the ground that the motive 
 was peaceful and lawful inquiry, and for the first time, it is alleged 
 that these boats were going ashore off duty, when they casually met 
 the American brig, an allegation not only novel, but in direct con- 
 tradiction to Fausset's deposition, and wholly inconsistent with the 
 idea that Captain Lloyd, in his letter, told the " whole truth." 
 
 In this connection, it is proper to remark that, down to this period, 
 the deposition of Lieutenant Fausset had never been alluded to iu
 
 i2 B^iia- GliXERAL ARMSTKONG. 
 
 any of the correspondence. It makes its first appearance in tie 
 letter of Count Tojal, written to Mr. Hopkins [Doc. 53, p. 33], on 
 29th September, 1849, 35 years after the transaction, and after the 
 date of Lloyd's letter and Fausset's deposition, and when driven to 
 the wall by Mr. Hopkins's able argument ! The quotation in this 
 letter rendering the account of De Castro wholly inconsistent, the 
 Count is necessarily driven back to the position of the British offi- 
 cers, and his statement proceeds, like theirs, wholly to ignore the 
 fact of there being but " one boat," and concludes with the decla- 
 ration " that this serves to show the incorrectness of the statement, 
 that the barges which first approached the privateer were four in 
 number, and all armed ; whereas the first was alone and unarmed, 
 and consequently the fire made upon her was, by no means, pro- 
 voked, and especially not made in self defence, as is alleged." 
 
 Your honors will perceive that this is not an express denial that 
 " four boats" approached the Armstrong, but only that Fausset's 
 was the " first," nor does it deny that there were boats armed, but 
 only that Fausset's was not. Now, we can reconcile all the state- 
 ments upon this point. It will be remembered that, in Captain 
 Reid's letter, he states that the boats came from the Carnation. 
 Fausset admits that his boat did advance from the Carnation. The 
 evidence also shows that the Carnation was anchored within half 
 pistol-shot of the Armstrong. Now, supposing that the object 
 being to surprise the privateer, four boats put off from the Carna- 
 tion, Fausset's in the lead, unarmed, his object being to engage the 
 officers of the privateer in a parley, and thus throw them off their 
 guard, while the other boats came up. Fausset fails in this ruse de 
 guerre. To save himself, he pushes off with his boat-hook, and is 
 getting out of the way when the other boats come up ; the fire is 
 opened and returned, by which men in Fausset's boat are killed and 
 wounded, being within range although retreating. Thus Lloyd's 
 letter and Fausset's deposition, as to the fact of the first boat being 
 unarmed, may be, true without at all invalidating the sworn testi- 
 mony of all the American officers, of Captain Smith, who was on
 
 EEPOltT OF THE SPEECH OF P. PHILLIPS, ESQ. 73 
 
 board, and detailed the transaction a few minutes after it occurred ; 
 of the governor of the Azores, from information derived from his 
 people at the castle ; from the Marquis de Aguiar, and finally, as 
 late as August, 1843, from De Castro. 
 
 Returning now to an examination of the transaction, as tested 
 by the probable motives of the parties, and by their character, we 
 find the commander of this fleet characterized by insolence and unre- 
 strained daring. The testimony of C. W. Dabney shows that he 
 had acquired in the British navy the title of " Mad Lloyd." It also 
 shows that his conduct to the governor of the Azores was over- 
 bearing to the last degree. In his first letter to the governor, 
 informing him of his intention "to take possession" of the Arm- 
 strong, he expresses his expectation " that he will order his fort to 
 protect the force employed for that purpose," and through the note, 
 written by the English consul, at his instance, he declares that he 
 will send a brig to fire on the schooner, and that, if he (the 
 governor) should allow the masts to be taken from the schooner, 
 he would regard the island as an enemy of his Britannic majesty, 
 and would treat the towu and castle accordingly. [Greave's letter, 
 27th September, 1814. Sen. Doc. 14, p. 19.] Demands such as 
 these, requiring a neutral government not only quietly to submit to 
 an invasion of its rights, but to share in its own degradation, could 
 only proceed from a madman or a despot. 
 
 But it is not, may it please your honors, alone for the purpose of 
 exhibiting the lawless insolence of this officer that I refer to these 
 letters. They contain the motive which induced this invasion. The 
 object clearly was to obtain "possession'' of the privateer ; thence 
 the anxiety that the governor should not permit the " masts" to be 
 taken from her. It is known, as a historical fact, that she was part 
 of the fleet ordered to rendezvous at Jamaica, for the purpose of 
 attacking New Orleans, and this light draft vessel was deemed 
 important for the navigation of the Mississippi. This is the reason 
 why, although the brig Carnation had anchored within pistol-shot, 
 she did not at once use the means for destroying her. Two attempts 
 
 5
 
 74 BKIO GENERAL ABMSTKONO. 
 
 were made to capture her by boats. These failing, the Carnation 
 made a demonstration the next day, but ascertaining that capture 
 was impossible, she finally resorted to destruction. In addition to 
 all this, we have the letter of Mr. Charles W. Dabney, our present 
 consul, already referred to, testifying that Captain Lloyd had, a few 
 weeks before, publicly " declared in Fayal that he had boats pre- 
 pared for cutting out privateers, and that he would take them 
 wherever he found them." 
 
 Again, we have the evidence of history, that such violations of 
 neutrality by British officers, were of frequent occurrence. Mr. 
 Monroe, writing to Mr. Sumpter, on 3d January, 1815 [Doc. 14, 
 p. 20], while instructing him as to this very case, says: "The 
 growing frequency of similar outrages, on the part of Great Britain, 
 renders it more than ever necessary to exact from nations iu amity 
 with them a rigid fulfillment of all the obligations which a neutral 
 character imposes," and in less than ten days after this occurrence, 
 the governor at Fayal is called upon to witness another flagrant 
 outrage of the rights of his port by another British captain. On 
 the 4th October, 1814 [Doc. 14, p. 19], he writes to Aceredo, " By 
 my letter, of the 28th ult., your excellency is informed of all the 
 painful occurrences which have taken place in this island, on the 
 26th of that month. By the accompanying copy, No. 1, your 
 excellency will see how the British commander Somerville acted 
 against the general law of all nations, and in manifest violation of the 
 14th article of the Treaty of Commerce and Alliance between his 
 Britannic Majesty and our Lord the Prince Regent." 
 
 We have now gone through the evidence. In this long proces- 
 sion of witnesses, there is one looked for but not found. We no- 
 where see the British consul. From his residence at Pico, at the 
 mouth of the harbor, he sent a messenger to the Plantagenet as she 
 passed his island home. That messenger doubtlessly informed the 
 commander, as did the pilot, who, and what it was that carried so 
 saucily the " bit of striped bunting " that was floating in fancied 
 security under the guns of the Portuguese caetle. The consul how-
 
 KEPOliT OF T1IK SPEECH OF P. PHILLIPS, ESQ. 75 
 
 ever, nowhere appears among those British officials who seek to 
 tarnish one of the brightest actions of our naval history. His 
 absence is honorable to him, and speaks volumes in favor of that 
 judgment, which, iu the name of the country, and in vindication of 
 truth, we now demand. Let this controversy for indemnification 
 terminate as it may, we desire that the fame and good name of the 
 gallant officers and men associated with this memorable transaction 
 should be freed from the stain which an unjust and false award has 
 stamped upon them. 
 
 Assuming, as I think we have a right now to do, that the British 
 boats approached the privateer for a hostile purpose, it can scarcely 
 be necessary to adduce authorities to prove that this was a viola- 
 tion of the neutrality of Portugal. It is not necessary that the 
 measure should iu itself be absolutely hostile. It is enough that it 
 necessarily leads to hostility. ' [Wildman, 2 vol., 148, Twee Geb- 
 roeders ; 3 Rob. Admr., 164, Nancy Bee, p 7.] 
 
 If then our rights have been invaded iu a neutral port, and our 
 property destroyed, we are entitled to reparation. It is no answer 
 to our demand, that Portugal was weak and unable to afford pro- 
 tection. Portugal, as a sovereignty, stands among the Nations, 
 demanding equality of privilege. She is entitled to it, but this 
 right carries along with it, equality of obligation. Equal privi- 
 leges and equal obligations go hand in hand ; when a nation can 
 no longer fulfill the latter, she must yield up the former and be 
 incorporated with some other nation capable of discharging national 
 obligations. There is no measure for determining the obligations of 
 nations according to their strength, any more than there is for deter- 
 mining the duties of individuals. " A dwarf is as much a man as a 
 giant. A small Republic is no less a sovereign state than the most 
 powerful Kingdom. Whatever, therefore, one state has the right 
 to do, so may any other, and whatever one state ia bound to do, 
 so mnst every other." [Vattel's Law of Nations, Prelim., 18, 19. 
 Woodern Lectures, 1 vol., p. 41.] 
 
 These great principles seem to me to be sufficient to dispose of
 
 76 BRIG GENERAL ARMSTRONG. 
 
 this point, and to the non-observance of them may be attributed 
 some of the apparent conflict which I frankly confess is to be found 
 in the books. The most of the learning to be met with in the 
 elementary treatises has reference to illegal capture and restitution. 
 The principle that restitution is due is universally admitted, and it 
 is difficult to understand upon what reasoning the neutral is bound 
 to restoration, which is not equally applicable to reparation where 
 restitution is impossible. Chancellor Kent, speaking on this subject 
 says : " It is not lawful to make neutral territory the scene of 
 hostility, or to attack an enemy within it ; and if the enemy be 
 attacked, or any capture made under neutral protection, the neutral 
 is bound to redress the injury and effect restitution." [1 vol. Com., 
 p. 122.] I do not find that the obligation of restitution is at all 
 limited by the power of the neutral government. 
 
 The case of liability for destruction is broadly stated, by Molloy 
 in his "Jure Maritime," in illustration of which, after reciting nota- 
 ble instances of adherence to neutral rights, he says : " But they 
 of Harnborough were not so kind to the English when the Dutch 
 fleet fell into their road where rid at the same time some English 
 merchantmen, whom they assaulted, took, burned and spoiled ; for 
 which action and not preserving the peace of their port they were, 
 by the law of nations, adjudged to answer the damage, and I 
 think have paid most of all of it since." [7 Edition, B. 1, C. 1, p. 13.] 
 
 It was questioned whether, in cases of restitution, the expense 
 should not be borne by the injured party. But this is treated by 
 Bynkershoek with somewhat of scorn. " That the injured party 
 should bear the expense appears to me to be very unjust, as it is 
 the duty of the sovereign of the territory to revenge the injury done 
 to himself ; for it is an injury done to him to violate a port which is 
 equally open to all his friends. And what if he who committed the 
 violation goes away immediately ? Is the individual whose vessel 
 has been taken, to make war at his own expense ?" He then pro- 
 ceeds to cases where nations have entered into treaties which stipu- 
 late that the Government will use their utmost endeavors that the
 
 BEFOET OF THE SPEECH Of P. PHILLIPS, ESQ. 77 
 
 captured property should be restored." And says : " If it be the 
 duty of the sovereign to use his utmost endeavors to effect that pur- 
 pose it follows that he must do it at his own expense. Nay by 
 going to war, if other means are insufficient. Such is the law which 
 is observed among all nations, (Bynkershoek's Law of War, by 
 Duponccau, p, 60.) These citations maintain the only true rule 
 by which the relation of nations can be safely governed, to wit 
 " That whenever the law of nations imposes a positive duty ; it at 
 the same time imposes a positive obligation to indemnify for losses 
 sustained on account of the non-fulfillment of that duty." 
 
 If we were to test the liability of Portugal by the rule contended 
 for by her own ministers, that a neutral is not liable for losses when 
 she employs "all the means in her power" to prevent them, it would 
 be difficult to find in the occurrences an escape from responsibility^ 
 for no means but two imploring notes were used by the Portuguese 
 officers. 
 
 But if the liability of Portugal was otherwise doubtful, our own 
 construction of the law of nations would seem to be conclusive. 
 On January 3rd, 1815, Mr. Monroe to Mr. Sumpter : " The Presi- 
 dent does not entertain a doubt of the promptitude which the Prince 
 Regent will manifest, particularly when he is informed of the aggra* 
 vated nature of this case. You are requested to bring all the 
 circumstances of the transaction distinctly to the view of the Por- 
 tuguese government, and to state the claims which the injured 
 party has to immediate indemnity." [Doc. 14, p. 20.] 
 
 Mr. Adams to the Chevalier Corrende Serra, March 14> 1818 .' 
 " Of the facts of the case, there is, and can be no question, having 
 been ascertained not only by the statements of the injured parties, 
 but by the official reports of your qwn commanding officer. It is 
 hoped your government will, without further delay, grant to the 
 sufferers by that transaction the full indemnity to which they are by 
 the laws of nations entitled." [Doc. 53, p. 13.] 
 
 Mr. Dickens to Mr. Kavanagh, 20th May, 1835 : " The Portu- 
 guese authorities at that place (Fayal) having failed to afford the
 
 78 BRIO GENERAL ARMSTRONG. 
 
 vessel that protection to which she was entitled in a friendly port 
 which she had entered as an asylum, the government is unquestion- 
 ably bound, by the law of nations, to make good to the sufferers all 
 the damage sustained in consequence of the neglect of so obvious 
 and acknowledged a duty." [Doc. 53, p. 24.] 
 
 Mr. Webster to Mr. Barrow, 15 January, 1842 : " Upon receipt 
 of this letter, you will, without delay, make yourself acquainted 
 with the circumstances, and address a note to the minister. The 
 amount of the claim the Department will not attempt to fix ; but 
 its justness, I believe, has not been denied." And again, on 18 August, 
 1842 : " Both these claims are regarded as just by this government, 
 ar<d will not be relinquished under the objections heretofore made tc 
 them by the Portuguese government, which are entirely unsatisfactory." 
 [Doc. 53, p. 40, 42.] 
 
 Mr. Clayton to Mr. Clay, 8 March, 1850: "If within that 
 period, satisfaction is not given and due provision made for the pay- 
 ment of our citizens, you are ordered to demand your passports, and 
 return to the United States." [Doc. 53, p. 68.] 
 
 The court will remark, that at the time Mr. Webster declared 
 that " the claim will not be relinquished under the objections here- 
 tofore made," Portugal had assumed the ground now attempted 
 to be maintained by the solicitor that her weakness and inability 
 to afford protection, freed her from responsibility for the loss 
 sustained. [Kavanagh to Forsyth, 18 March, 1837. 4 Sept., 
 1837. Doc. 14, p. 33, 34.] 
 
 Under these repeated assertions, emanating from the Executive 
 of this government, our ministers at Portugal continued to press 
 the claim, as one founded upon the law of nations, and uninfluenced 
 by the question of the relative power of the two governments of 
 Portugal and England. The force of these admissions is attempted 
 to be broken by the argument, that they were the mere statements 
 of an advocate" pressing the claim of his client ; with proper respect 
 to the solicitor, it seems to me that this comparison is derogatory 
 to the dignity of the government which he represents. No govern-
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 79 
 
 ment, under the law of nations, is justified in demanding from 
 another what it is not ready to give under similar circumstances. If 
 Portugal had yielded to oar assertion of right, and a similar 
 demand against us had been presented by another nation, no 
 American minister could have been found so wanting in self-respect, 
 as to have shielded himself behind the argument now set up. 
 
 Upon these principles we assert, that the present claimants had 
 a demand for indemnification against Portugal. This demand 
 having been released through the action of this government, the 
 question now is, whether this has been effected by such means as to 
 make it liable to indemnify them. 
 
 In looking through the voluminous documents which make up the 
 history of this case, we are struck with the repeated misfortunes 
 (I use the mildest word), it has been subjected to. From Decem- 
 ber, 1815, to May, 1835, the government seemed to have wholly 
 abandoned the interest of the claimants. During this whole period 
 of twenty years there is not a line addressed to the Portuguese 
 government ; when it is resumed in 1835, we find our minister, Mr. 
 Kavanagh, reporting de novo to our Secretary of State, the facts 
 of the case, wholly innocent of all knowledge of past negotiations, 
 [30 Jan., 1836 to Mr. Forsyth, Doc. 14, p. 28], and stating 
 further, that there was no record in the archives of the correspon- 
 dence with Mr. Sumpter. In this letter, as in the one under date 
 26 December, 1836 [p. 31,] Mr. Kavanagh also writes, that he 
 had withheld the Armstrong case, to "prevent embarrassment in the 
 settlement of the others." 
 
 When, finally, the Armstrong case is again presented to the 
 Portuguese government, it is upon the letter of our consul enclose- 
 ing copy of Captain Reid's protest, and the prior letter of the 
 consul, written during the night of the engagement. These are 
 the documents, solemnly paraded, and more, solemnly marked, A, B, 
 C, upon which the controversy was resurrected from the sleep of 
 death, to which the government had apparently consigned it.
 
 BRIG GENEEAL AKMSTKONG. 
 
 [Kavanagh to Minister Foreign Affairs of Portugal, It February, 
 1837. Doc. 14, p. 32.] 
 
 As may have been anticipated, the first reply of the Portuguese 
 government, opens with the declaration "That her majesty's 
 government cannot but be surprised, that this claim has made its 
 appearance after a silence of so many years." [3 August, 1843. 
 Doc. 14, p. 18.] How feeble was the attempt to explain this 
 apparent abandonment, will be seen in the letter of Mr. Hopkins 
 to Count Tojal, and the reply thereto. [Doc. 53, p. 21, 34.} 
 
 The next stage in this diplomacy, is the peremptory demand made 
 by Mr. Clay, under the instructions of Mr. Clayton [Doc. 53, p. 
 69], in which he limits his stay at the Portuguese court to 20 days, 
 without a satisfactory adjustment of all the American claims, and 
 here again we find the unfortunate claim of the Armstrong over- 
 shadowed and subordinated. Count Tojal, in his reply of 6 July, 
 1850 [Doc. 53, p. 13], "yields to the force of circumstances, and 
 without again reverting to the justice or injustice of the claims 
 presented, and only pro bono pads, offers to pay the said mentioned 
 claims, amounting to $91,727 according to Mr. Clay's account, with 
 the only exception of that relating to the privateer (General 
 Armstrong. In respect to this claim, the undersigned cannot 
 deviate from the proposal heretofore made to Mr. Clay, that of so 
 important a claim being submitted to the decision of a third power, 
 the claim being of so different a nature from the others. For as 
 these latter have reference only to Portugal, that of the privateer 
 involves a principle of national law, the application of which does 
 not merely regard Portugal, but all other nations." 
 
 It is in this letter we find conclusive proof that the obstinacy of 
 Portugal was stimulated and directed by English influence : " Her 
 majesty's government, besides the arguments contained in the notes 
 formerly addressed to the government of the United States, finds 
 its judgment and the manner of weighing the question strengthened 
 with the opinion of her Britannic majesty's government, which has
 
 EEPOKT OF THE SPEECH OF P. PHILLIPS, ESQ. 81 
 
 always deemed this claim of the government of t\e United States as 
 unjust. The subsisting relations between her most faithful majesty's 
 government and that of her Britannic majesty, OBLIGE the under? 
 signed to communicate to the British government all that has taken 
 place," &c., &c. 
 
 Now, this question of "National Law 7 ' was the liability of Por- 
 tugal to make good losses occasioned by a force which she was 
 physically unable to resist. It was in relation to this very objection, 
 and after it had been solemnly urged, that Mr. Webster declared, 
 In 1842, that this claim would " not be relinquished." Mr. Clayton 
 had written, on 8th March, 1850 [Doc. 53, p. 68], that, in reference 
 to an arbitration, the President had directed him to say, " that no 
 such course, under the circumstances, would receive his sanction." A 
 sudden change having taken place in our national administration, we 
 find Mr. Webster writing, on 23d August, 1850 [Doc. 53, p. 83], 
 that the President " deems it advisable to accept the proposition 
 offered in the note addressed to you, by the Count de Tojal, on the 
 6th July last." 
 
 What was that proposition ? It was evidently one by which, to 
 say the least of it, our claim was placed at hazard, in order to obtain 
 the payment of others. The proposition was a complete thing. The 
 United States could only accept it as a whole. There was no 
 admission by Portugal of the justness of the claims she agreed to 
 pay. On the contrary, she denied their justness. The proposition 
 was "pro bonopacis," and this consideration would not be secured 
 by the acceptance of the money and the rejection of arbitration, 
 for the greatest disturber of her peace. Upon this point, words 
 might be multiplied, but not argument. The statement of the 
 proposition vindicates itself. [2 Parsons on Contracts, p. 29.] 
 
 Our claim thus placed at hazard for governmental purposes, and 
 for considerations in which we had no special interest, we now pro- 
 ceed to the examination of the treaty by which the agreement to 
 arbitrate was provided for. 
 
 I do not think it necessary to dwell upon the letters of Captain 
 
 7
 
 82 BKIG GENERAL ARMSTRONG. 
 
 Reid, written from New York, the 26th of August, or that of S. C. 
 Reid, Jun., of 5th September, inquiring of the truth of rumors that 
 such an arbitration was contemplated. Their dates show that they 
 were written after the arbitration had become a fixed fact, and so 
 Mr. Webster replies to them. Both of these letters, in respectful 
 terms, question the propriety of the act, and after they had learned 
 that the government was absolutely committed, nothing was left to 
 them but submission. 
 
 The treaty having been perfected by the Senate, Mr. Webster, on 
 the 20th March, 1851, writes to Mr. Hadduck [Doc. 53, p. 85], 
 directing him that, in carrying into effect the 3d article of the 
 treaty, he will compare jointly with the Portuguese government 
 the "copies therein specified," and further, he says: "You will 
 understand, of course, that these copies are limited to such commu- 
 nications as have passed between the American Legation and the 
 Portuguese government, at Lisbon," &c., &c. 
 
 On the 12th July [Doc. 53, p. 86], he writes to him again, and 
 referring to his former communication, he says : " To provide against 
 the omission of any important part of the earlier portion of the cor- 
 respondence I mean that which passed in 1814 and 1815, in Rio 
 Janeiro, where the court of Portugal, at that time, resided, and 
 which it could not have been intended to exclude I transmit yon 
 herewith a printed copy of the correspondence, as communicated to 
 Congress, on ,15th December, 1845." 
 
 The erroneous limitation in the former letter is attempted to be 
 remedied by the latter. But before this second letter reached its 
 destination, Mr. Hadduck had already met the Portuguese minister, 
 and compared and certified the evidence to be submitted to the 
 arbitrator. [See Mr. Hadduck's letter, 17th July, 1851. Doc. 53, 
 p. 87.] It may be that the award is to be attributed to an imper- 
 fect presentation of the case, and thus vindicate the remark made 
 by Mr. Bayard, in the Senate, that he " finds OB the face of the 
 decision the want of a proper presentation of the case," attributable 
 to " a gross neglect on the part of the officer of the government."
 
 REPORT Otf THE SPEECH OF P. PHILLIPS, ESQ. 8 
 
 The government having thus submitted this case to arbitration 
 without the assent of the claimants, construed the 3d article, which 
 provides, " that copies of all correspondence which has passed, in 
 reference to the claims, &c., shall be laid before the arbiter," &c., 
 as a limitation excluding the right of the claimants to be heard, or 
 in any manner to appear in the case. 
 
 Now, we do not admit that the government has a right, under 
 such circumstances, to submit the claim of one of its citizens to the 
 arbitrament of a third power, without holding itself liable to make 
 good the claim, if it can be shown to be founded in justice. But 
 waiving this, we contend, if a case be thus submitted, on the grdat 
 principles of justice which govern the affairs of nations and men, the 
 parties should have their "day in court," to submit such proofs and 
 irguments as they may deem necessary to the assertion of this right. ' 
 
 Your honors will, I trust, pardon my reading an extract from 
 Chancellor Walworth, in reference to the binding efficacy of awards : 
 "I apprehend it would be carrying the principle too far to say that 
 the decision shall be conclusive on the party, who has never had a 
 chance to be heard before the arbitrator, upon the subject of 'the 
 submission." I regard it " as a fundamental rule of construction, 
 in reference to every transaction in th'e nature of a judicial pro- 
 ceeding, that the contract of submission necessarily implies that the 
 arbitrator is not authorized or empowered to decide the question in con- 
 troversy without giving the parties an opportunity to be heard in 
 relation thereto, unless, by the terms of submission, the right' is 
 waived." And the Chancellor quotes Lord Eldon, in a case 
 where an act of sederunt was relied on, as saying, " that by the 
 great principles of eternal justice, which was prior to the act of 
 sederunt, it was impossible that an award could stand where the 
 arbitrator heard the one party, and refused to hear the other." 
 [Elmendorf vs. Harris, 23 Wend., 633.] And the same principle 
 has been adjudicated in the Supreme Court of the United States, to 
 which we may now add the admission in the learned solicitor's brief, 
 that " it is not necessary to specify that the arbitrator shall hear and
 
 84 BB3G GENERAL AKM3TKOHG. 
 
 decide upon the law, and the facts which shall be submitted by the 
 claimants, through their government ; that is implied from the office 
 of arbitrator." [Printed brief, p. 5.J. 
 
 I submit, with unfeigned respect for that great statesman and 
 jurist, who decided upon the construction of this article of the 
 treaty, that there was nothing in its terms which took from the 
 parties the right they claimed under it. But whether this construc- 
 tion was right or wrong, our claim for redress is unaffected, as in 
 the one case, the injury would flow from an executive act, and in 
 the other, from the treaty-making power. In either case, the parties 
 would have been damaged by an act of their government against 
 right and justice. 
 
 We come now to the question, " what is the scope and object of 
 the submission ?" 
 
 To answer this, we must revert to the inquiry, what was claimed 
 on the one hand, and denied on the other ? 
 
 1. No dispute ever arose as to the amount of the claim. 
 
 2. The right to indemnity against Portugal was nerer alleged 
 but on the assumption of the truth of Captain Reid's statement, 
 that he acted in self-defence. [Hopkins to Count Tojal, Doc. 53, 
 p. 22.] 
 
 3. Portugal, upon the admission of our premises, denied that any 
 such liability existed under the law of nations. The whole discus- 
 sion was in the nature of a demurrer which, admitting the facts to 
 be true, denied the conclusion of law. See 
 
 Doc. 53, p. 33, Kavanagh, . . . 18th March, 1831 
 
 34, do. . . '. 4th Sept., 1837 
 
 36, do. .v . 6th April, 1837 
 
 * 76, Count Tojal, ' : j . eth July, 185C 
 
 Looking to the correspondeuce for the purpose of isolating the 
 point of difficulty, and then referring to the language of the 2d 
 article of treaty, I am constrained to the conclusion that the 
 matter referred was the " question of public law involved in tht
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 85 
 
 Armstrong case" upon which the parties had not been able " to come 
 to an agreement?' This specific question was, whether the weakness 
 of Portugal released her from liability for the damage sustained by 
 the Armstrong, or the illegal proceedings of the British fleet at 
 Payal. If Portugal had at any time rested her denial of responsi* 
 bility upon the ground that we were the first aggressors, it would 
 have at once tendered an issue of fact, which was capable of easy 
 solution. If this construction be correct, then, npon the plainest 
 principles of municipal and national law, the award not being 
 responsive to, but exceeding the submission, would be void. 
 [Vattel's Law of Nations, p. 276, 277. Wildman, 1 vol., p. 186. 
 Steers and Dashel, 1 Bsp. N. P. C., p. 167.] 
 
 If, however, this view be erroneous, and the question of fact was 
 submitted by the treaty, then our complaint is stronger of the gross 
 wrong and injustice in submitting this case for adjudication on a 
 question of facts, and depriving the parties of the right to improve 
 the evidence by such further proof as in their opinion their case ' 
 demanded. It will be remembered that this transaction to.ok place 
 " in the face of all Fayal, and a respectable number of strangers." 
 It was capable of the fullest elucidation. The claimants had 
 presented their claim on their own statement alone, as sufficient for 
 the initiatory action of their own government, but they had never 
 prepared it for final adjudication by any tribunal whose judgment 
 was to conclude them. Could there be a greater wrong committed 
 against their rights, than to force them, in this state of unpreparedness, 
 to an arbitration, which, by its terms, excluded them from all right to 
 be heard? 
 
 If, during the negotiations, the Portuguese ministers had ever 
 rested their denial of liability upon the ground that the proof was 
 not sufficient as to the facts, the claimants could have immediately 
 made good the deficiency, or at any rate brought forward such 
 evidence as was within their power, and upon which they were 
 willing to rely. This contingency was not omitted in the instruc- 
 tions of Mr. Webster, who, writing on the 15th January, 1842, to
 
 86 BRIG GENERAL ARMSTRONG. 
 
 Mr. Barrow, says" If the inadmlssibility of the claim is made to 
 depend upon the defect of evidence, or upon any other cause, you will 
 ascertain precisely what further evidence is required, in addition to 
 that which has already been communicated by Captain Reid.'* 
 [Doc. 14, p. 40.] 
 
 I conclude this point by repeating that if the question of 
 national law was alone submitted, then the award, as to the facts, 
 is not of any validity. If the facts as well as the law were 
 submitted, then the still greater wrong has been done to the 
 claimants, by excluding them from the right to prove the facts and 
 vindicate the claim. 
 
 The award of Louis Napoleon impliedly admits the liability of 
 Portugal under the law of nations. His language is, "That 
 Captain Reid, not having applied from the beginning for the inter- 
 vention of the neutral sovereign, &c., ' released that sovereign of the 
 obligation in which he was to afford him protection, by any other 
 means than that of a pacific intervention. 1 " Again he says " that 
 the government of her most faithful majesty cannot be held respon- 
 sible, &c., 'without the local officers and lieutenants having been 
 required in proper time, and enabled to grant aid and protection to 
 those having the right to the same. 1 " 
 
 Upon the facts it is considered, that if it be clear that "some 
 English long-boats, under the command of Lieut. Fausset approached . 
 the American brig, it is not certain that the men who manned the 
 boats aforesaid were provided with arms and ammunition" 
 
 That " it is evident in fact, &c., that the Americans having hailed 
 them, and summoued them to be off immediately, fired upon them, 
 &c., without any attempt having been made on, the part of the crew 
 of the boats to repel at once force by force." 
 
 It will thus be perceived, that having decided the law in our 
 favor, our claims was rejected. ,.->a-r o 
 
 1st, Because it was uncertain that the boats were armed. 3...,",^, 
 
 2d, That we did not apply for protection, before we fired upon 
 the boats, .?
 
 REPOltT OF THE SPEECH OF P. PHILLIPS, ESQ. 87 
 
 - The controlling fact, which must necessarily elucidate the 
 approach to the brig, whether there were more than " one boat," 
 is not found against the claimants. If our statement be correct; 
 and it is not denied by the award, the question must be answered 
 why did four long-boats of the enemy approach the brig? 
 Again the fact is not denied, that one man was killed and one 
 wounded on board of the brig but the award states that it was 
 " not certain, that the men who manned the boats were provided 
 with arms and ammunition." How, then, did the loss and .injury 
 take place ? The only certainty found by the award is that the 
 boats " did not repel at once force by force " without knowing 
 how to measure time as applicable to this phrase ; it is evident that 
 if they did return the fire, it was as soon as they were ready ; 
 and whether this was one minute or nine after they received it, 
 could make no difference in this transaction. 
 
 Looking through the whole case, I believe your honors will agree 
 with me in saying, that a just claim on the part of the plaintiffs has 
 been lost to them, and that the loss has been occasioned by the 
 action of their own government, and there now remains only the 
 question, whether this government is bound to make good the loss 
 which it has occasioned ? 
 
 In the formation of a government, individuals yield up the right 
 to redress their own wrongs. This is submitted to the power which 
 represents the whole society. For the redress of private injuries, 
 municipal laws are ordained ; for wrongs committed by a foreign 
 government, the injured party looks to the power of his own 
 sovereign, and to the law of nations. Each citizen owes allegiance 
 to the society, and in return receives from that society its protec- 
 tion. In the language of a learned writer " In the act of 
 association, by virtue of which, a multitude of men form toge- 
 ther a state or nation, each individual has entered into negoti- 
 ations with all, to promote the general welfare ; and all have entered 
 
 x 
 
 into engagements with each individual to facilitate for him the 
 means of supplying his necessities, and to protect and defend him."
 
 88 BRIG GENERAL ARMSTRONG. 
 
 [Vattel, 16, p. 4.] Again, " whoever uses a citizen ill, indirectly 
 offends the State which is bound to protect the citizen ; and the 
 sovereign of the latter should avenge his wrongs, punish the 
 aggressor, and, if 'possible, oblige him to make full reparation, since 
 otherwise, the citizen would not obtain the great end of civil 
 association, which is safety." [ 71, p. 116.] 
 
 If the government, for any considerations of the general welfare, 
 sacrifices the rights of an individual, the loss should be made good 
 by the means of the whole, and thus equalize the contribution and 
 burden. This is a principle of universal justice, applicable alike to 
 the affairs of government and individuals. Thus, by the Rhodian 
 Law, it is declared that, " if goods are thrown overboard, in order 
 to lighten the ship, the loss incurred, for the sake of all, shall be 
 made good by the contribution of all." Speaking of the right of 
 " eminent domain," the same learned writer on the law of nations 
 says, that when, in a case of necessity, the sovereign disposes of the 
 rights of an individual, "justice requires that the individual be 
 indemnified at the public charge ; and if the treasury is not able to 
 bear the expense, all the citizens are bound to contribute to it ; for 
 the burdens of the State ought to be supported equally, or in a just 
 proportion." [Sec. 244, p. 112.] This great principle of equality 
 and justice has been incorporated into the stipulations of our Federal 
 and State constitutions, forbidding the government from taking 
 private property for public, and without just compensation. 
 
 Upon these fundamental rules, which regulate the relation between 
 government and citizen, the obligation to make good our loss in this 
 transaction rests. We need not rely, however, upon the assertion 
 of general principles, by elementary writers, for the doctrine has 
 been embalmed in judicial decisions. In the case of De Bode vs. 
 Regina, the Lord Chancellor asserted, that " it is admitted laic that, 
 if the subject of a country is spoliated by a foreign government, he 
 is entitled to obtain redress from the foreign government, through 
 the means of his own government. But if, from weakness, timidity, 
 or any other cause, on the part of his own government, no redress
 
 BEPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 89 
 
 is obtained from the foreigner, then he has a claim against his own 
 country." [House of Lords, 1852. Eng. Law and Eq., vol. xvi., 
 p. 23.] It will be perceived that this general liability is limited by 
 the word " spoliated." To spoliate, is to rob, plunder. So that the 
 redress would not apply to injuries received in legitimate warfare. 
 It was upon this principle that it was insisted in the British Par- 
 liament that if British subjects, whose debts and property had been 
 confiscated by the States, during the Revolution, did not receive 
 indemnity under the treaty of 1783, "Great Britain was bound 
 in honor to make them full compensation for their losses." [Debrett's 
 Debates, quoted in vol. iii. Jefferson's Works, p. 373.] 
 
 This principle, announced by the highest court in England as a 
 maxim of law, has a wider reach than is necessary to be maintained 
 in the adjudication of the claim now before the court, but no reflec- 
 tion of my own, and no argument or authority adduced, leads me 
 to doubt its entire correctness. 
 
 By an examination of our numerous treaties, I find the distinction 
 between acts of war and spoliations fully recognized, as they are 
 also in the admiralty decisions " spoliatio sed legalis captio." By 
 the 7th article, treaty with Great Britain, 1794, she stipulated to 
 pay for losses and damages by reason of irregular or illegal captures 
 made during the war. [Volume of Treaties, p. 121.] So, in the 
 treaty with Spain, 1802, she stipulated to " make compensation for 
 the damages, losses, and injuries, in consequence of the excesses 
 committed by Spanish subjects on American citizens during the war." 
 [p. 198.] These may suffice, though we might, to the same point, 
 quote the treaties with France, Denmark, the Two Sicilies, Texas, 
 Mexico, and Peru. 
 
 I have examined all our treaties with foreign nations, a list of 
 which, with reference to such articles as bear upon the question 
 before you, I now submit for the convenience of the court. I have 
 found in that examination no parallel to the treaty now before you. 
 This is the first instance that our government has submitted the case 
 of an individual to the arbitrament of a foreign power. So far as
 
 90 BRIG GENERAL ARMSTRONG. 
 
 I am informed, it is the first case iu the history of nations. Under 
 the Treaty of Peace and Amity, in 1814, we agreed with Great 
 Britain to refer the dispute, as to the Boundary established by the 
 treaty of 1783, to two commissioners ; and, in the event of their 
 disagreement, to refer it to " some friendly foreign state." [p. 220.] 
 The commissioners thus appointed having disagreed, the terms of, 
 submission were fixed by a convention, 29th Sept., 1821. [p. 362.] 
 Again, a difference having arisen, under the 1st article of the Treaty 
 of Ghent, as to reclamations for slaves carried away by the British, 
 it was, by the convention of 1818 [p. 248], agreed to refer the ques- 
 tion to " some friendly sovereign or state. Both of these arbitra- 
 tions involved mere questions of law, as to the true construction of 
 written instruments. I will ask of your honors an examination of 
 these cases, that you may see with what particularity the right of 
 the parties to a full and fr.ee investigation was secured. In the 
 latter case, after the question of law was decided, the claimants, as 
 in all other treaties providing for indemnity, were allowed to go 
 before commissioners, and produce the evidence upon which they 
 asserted their right. I do not understand that government is alone 
 the embodiment of the power of the nation, but that it is also the 
 representative of its justice. To require, through legislative enact- 
 ments, that justice be done, and refuse to do justice itself ; to teach 
 one thing by its precept and another by its example, would be to 
 confound all morality, and deprive law of all sanction but force. 
 
 We appeal, then, from the power of the government, by which 
 we have been injured, to its justice, for redress. No question of 
 indemnity or personal safety could have swayed the determination of 
 the gallant Reid and his companions in arms. Without a thought, but 
 for the interest and honor of their country, they freely perilled both, 
 and, with victorious swords, carved out the noblest monument of 
 our naval history. For our defence on land we look, in time of war, 
 to our citizen soldiery. For our safety on the ocean, to our volunteer 
 seamen The Armstrong and Fayal are the watchwords for our 
 future. They are the lights which will lead our gallant tars to
 
 REPORT OF THE SPEECH OF P. PHILLIPS, ESQ. 91 
 
 victory . Let them not be dimmed by a denial of that governmental 
 protection to which they are justly entitled. 
 
 It may be, may please your honors, that in the zeal of advocacy 
 I may have used expressions and exhibited a feeling not usual in 
 judicial proceedings. If such has been the case, I trust your honors 
 will pardon it for the cause itself ; for surely, if there ever was a 
 case in which the cold atmosphere of the court should be warmed 
 with the glow of patriotism, it is the one which, on behalf of the 
 claimants, I now submit for your consideration. 
 
 0,1 
 
 frri"- : -|H I : uiTTf 
 
 .noi's'ijltf is 
 
 I nj) v! 
 
 VO
 
 92 BRIG GENERAL ABMSTBONG. 
 
 BRIEF OF THE U. S. SOLICITOR. 
 
 THE petition asks payment by the United States for the destruc- 
 tion of the brig " General Armstrong " by a British fleet on the 
 27th September, 1814, at the port of Fayal, in the neutral terri- 
 tory of Portugal. Indemnity was demanded by Portugal of Eng- 
 land at the time. Portugal having failed to procure it from Eng- 
 land, demand was made on Portugal in 1835. Portugal refusing to 
 pay, although earnestly pressed by the United States, it was finally 
 agreed, by treaty concluded 24th February, and ratified 10th 
 March, 1851, to submit the claim to arbitration. The King of 
 Sweden was suggested by Portugal as the arbitrator, but the 
 United States preferring the President of France, he was agreed 
 upon as the arbitrator. On the 3d of November, 1852, he rendered 
 an award in favor of Portugal, which the United States acknow- 
 ledged as final and obligatory. 
 
 The claim is now urged against the United States, on the ground 
 1st. That the claim was improperly submitted to arbitration. 
 2d. That the treaty was so improperly and unskillfully framed, and 
 the arbitration so negligently and improperly managed by the Secre- 
 tary of State, that the claim was thereby lost before the arbitrator. 
 
 In support of this claim, the petitioners, by their counsel, have 
 filed a brief, the points of which, to the number of thirteen, I pro- 
 ceed to state and consider. 
 
 First point Charges that the Portuguese government acknow- 
 ledged its liability to the United States, and cites the letter of the 
 Marquis d' Aguiar, dated December 23, 1814, and enclosures, in
 
 BRIEF OF THE U. 8. BOLIOTTOE. 93 
 
 support of this allegation. (See p. 22, Senate Doc. No. 14, 1st 
 Sess. 29th Cong.) 
 
 It is true that the enclosed letter to Lord Strangford, the British 
 minister, charges the British squadron with violating the neutrality 
 of Portugal in destroying the " General Armstrong," and demands 
 an apology and indemnity both for the inhabitants of Fayal, and 
 for the captain, crew, and owners of the " Armstrong," but it does 
 not admit the liability of Portugal in any event. 
 
 Second. Every administration has admitted the right of the 
 claimant. The evidence relied on to prove this is supposed to be 
 contained in the letters of instruction of Mr. Monroe, January 3, 
 1815, p. 20 ; of Mr. Dickens, dated May 20, 1835, p. 23 ; Mr. 
 Forsyth, October 2, 1835, p. 21 j Do. July 2, 1836, p. 29 ; Do. 
 September 21, 1836, p. 31 ; Mr. Webster, January 15, 1842, 
 p. 40 ; Do. August, 1842, p. 42. Mr. TTpshur, who succeeded Mr. 
 Webster, and Mr. Calhoun, who succeeded him, declined action on 
 the claim. Now, with respect to these letters, it will be found that, 
 with the exception of Mr. Webster, none of the secretaries express 
 an opinion on the justice of the claim against Portugal none of 
 them indicate any examination of the claim ; and Mr. Webster, at 
 page 4, merely says, he believes "its justness has not been denied," 
 and, at page 42, that the claim is " regarded as just by the govern- 
 ment, and will not be relinquished under the objections heretofore 
 made." 
 
 The first letter which instructs our minister to demand the 
 indemnity from Portugal is that of Mr. Dickens in 1835. Mr. 
 Monroe looked to Portugal to procure it from Great Britain ; and 
 the only expression in any letter prior to 1835, from our officers, 
 which seems to look to Portugal, is to be found in Mr. Sumter's 
 letter of 1st January, 1815, written without instructions from the 
 State Department ; and this expression is not used as a demand, 
 but occurs in commenting on the lettter of the Marquis d' Aguiar, 
 where he expresses his satisfaction at the " indication " it affords " of 
 a resolution to make or procure satisfaction to the injured Americans."
 
 1 BRIG GENERAL ABl48TEOmj. 
 
 And it is to be observed, in reference to this allegation, both 
 with respect to the United States and with respect to Portugal, 
 that it is by no means proper to attempt to conclude them by what 
 has been said by their respective officers on the representations of 
 the claimants, when acting on behalf of the claimant in endeavor- 
 ing to procure indemnity for them from others. 
 
 Thus, with respect, first, to the Portuguese officials : The repre- 
 sentations made by the Marquis d'Aguiar in his letter to Lord 
 Strangford, in which he claims indemnity for the Americans on the 
 ground that the British violated the neutrality of Portugal to 
 destroy the American brig, and asserting, in strong terms, that the 
 ground on which Captain Lloyd had justified himself at the time 
 was a false pretence, were afterwards, when the claim was made 
 against Portugal, set up to estop Portugal from denying that 
 the British had been the aggressors ; and now, when the effort is 
 made to charge the Government of the United States, the repre- 
 sentations made by the Secretary of State and other official persons, 
 in the effort to procure indemnity from Portugal, are set up as 
 admissions of the rights of the claimants ; and upon such grounds 
 alone, the advocates of the claim have felt themselves warranted in 
 saying, that the award made by the French emperor was made in 
 total disregard of the facts. But when it is remembered that, at 
 the several times when these representations were made by Portu- 
 gal and by the United States, they were acting for the claimant and 
 on his representations, and did not undertake to hear testimony 
 and decide the points in advance of undertaking to urge the claim, 
 they are not concluded by them at all when the claimant seeks in 
 turn to make these governments responsible for his losses. 
 
 So far from being conclusive evidence, these statements, being 
 nothing in fact but the representations of the claimant himself, 
 are not evidence at all. But these statements, not written by any 
 one having any knowledge of the facts, and altogether on the sug- 
 gestions of the claimants and for their benefit, are not only sought 
 to be made evidence, but evidence so irresistibly conclusive as to
 
 BRIEF OF THE TT; B. SOLICITOR. : 05 
 
 authorize the inference that the umpire who heard all the testimony 
 committed a gross mistake in respect to the facts. 
 
 This conclusion is far from being justified by this or any other 
 testimony which the claimant has offered. Even on the case which 
 the claimant has chosen to present, it is manifest that the decision 
 of the French Emperor was in accordance with the facts and the 
 law. In the protest which Captain Reid made on the 27th Sep- 
 tember, 1814, at Fayal, he admits that he fired on the boats of 
 the British, on the suspicion that they were approaching his vessel 
 for a hostile purpose a suspicion he had no right to indulge, and 
 which did not authorize the commencement of hostilities in a nea- 
 tral port. (See the case of the Anne, 3 Wheat. 435.) When It 
 is considered, too, that the British commander declared at the tinie 
 that the attack of the Armstrong was made " without the slightest 
 provocation," and " that the neutrality of the port which he had 
 intended to respect had been thereby violated," there is no doubt 
 that the Armstrong was the aggressor. It became so, perhaps, 
 under the honest conviction of the captain, that the approach of 
 the boats from the English squadron was made with a hostile pur- 
 pose. But that circumstance alone was insufficient to justify him 
 in proceeding to violence. The English squadron had the same 
 rights in the harbor which he had, and might send their boats 
 ashore at night without being subject to questions from him. 
 
 And when we have not only the statement of Captain Lloyd, 
 that the boats did not approach the brig with a hostile purpose, 
 and the depositions of the officer in command, and others in the boat, 
 testifying positively that they approached without any hostile pur- 
 pose, can we hesitate in believing that such was the fact, when not a 
 single circumstance is related by the officers and crew of the brig 
 which conflicts with this statement ? It is no doubt true that Cap- 
 tain Reid thought otherwise ; but his opinion cannot weigh against 
 testimony not only positive on the point, but entirely unimpeached. 
 
 Third. Says prosecution of the claim renewed by Mr. Clay- 
 ton, and peremptory demand made.
 
 96 BRIG GENERAL ARMSTRONG. 
 
 Fourth. That when this was done, Portugal offered to pay all 
 other claims as a lonu*, if the United States would consent to arbi- 
 trate this. This statement is repeated in the sixth point, and will 
 be noticed under that head. 
 
 Fifth. That pending this negotiation Portugal made further 
 admissions. That England interfered, and furnished arguments. 
 
 The admissions are similar to those already considered. The inter- 
 ference of England was not improper. England was undoubtedly 
 interested in the question. If decided against Portugal, and war 
 was made to enforce it, she would be regarded as the cause of 
 bringing on Portugal, a weak power, the Tengeance of a strong 
 one. She maintained that she had not done' anything which justi- 
 fied this. The commandant of her fleet against whom the charge 
 was brought repelled it. Could she stand by indifferently, and see 
 Portugal visited with war under such circumstances ? On the 
 other hand, could she see Portugal forced to pay, on the assump- 
 tion that England was the aggressor, without being sensible that 
 the world, under such circumstances, would expect her to reimburse 
 Portugal, and that she would be in honor bound to do so. It is no 
 discredit to England, therefore, that she has openly manifested an 
 interest in the settlement of this question ; nor does it show a want 
 of amicable feeling towards the United States, that she desired our 
 Secretary of State to refer it to an arbitrator for settlement. 
 
 Sixth. On the death of President Taylor and the accession of 
 Mr. Fillmore as President, with Mr. Webster, the proposition to 
 arbitrate was renewed and accepted, &c. That the payment of the 
 other claims formed any part of the inducement or consideration for 
 the agreement to submit the Armstrong claim to arbitration, is an 
 allegation entirely unsupported by the treaty, or anything in the 
 correspondence or circumstances which led to it. 
 
 Seventh. That the private agreement to arbitrate this claim was 
 entered into without the consent of the claimants, and against their 
 protest, &c. 
 
 It is true that Mr. Webster did not consult with the claimants
 
 BKIEF OF THE U. 8. SOLICITOR. 97 
 
 as to what course he should take. He found, on entering office, 
 that his predecessor had proceeded almost to extremities with Por- 
 tugal in order to extort payment of this claim. Our minister had 
 withdrawn from Lisbon, and notice given to Portugal that the cor- 
 respondence would be laid before Congress, with the opinion of the 
 President that the claim was withheld upon dishonest pretexts, and 
 ask the action of Congress on the case, which was equivalent to 
 asking the power of compelling payment. He (Mr. W.) did not 
 approve the action of his predecessor. He concurred with Mr. 
 Upshur and Mr. Calhoun (see his letter, p. 54), that there was 
 nothing in the circumstances of the case to justify such a course. 
 What course should Mr. Webster have taken with these convictions ? 
 He could not properly proceed in Mr. Clayton's course. He could 
 not suffer the existing relations to continue. He must keep in view 
 the dignity of his Government as well as the rights of the citizen. 
 He could not, as it is now insisted, abandon the pretensions set up 
 by his predecessors, and waive all future discussions of the 
 subject which had brought about a suspension of diplomatic rela- 
 tions to some future time, and so renewed the diplomatic rela- 
 tions. Such a procedure would not have been consistent with the 
 dignity of the Government. It would have been also as full a 
 recognition of the control of the Government-agency by the private 
 citizen, if Mr. Webster had desisted from doing what was proper 
 to be done in his judgment, as if he had proceeded in the designs 
 of his predecessor against his own judgment. When, therefore, 
 the petitioner and his advocates disclaim all right on the part of 
 claimants against foreign governments who have committed their 
 claims to this Government for prosecution, to dictate the measures 
 to be taken, but yet insist upon the right of controlling it so far as 
 to be able to require the Government to drop the claim rather than 
 prosecute it in a way which does not meet the approbation of the 
 claimant, it will be found, upon analyzing this proposition, that it 
 is in fact the assertion, in another form, of the power which is dis- 
 claimed. 
 
 8
 
 98 BRIG GENERAL ARMSTRONG. 
 
 He did not, therefore, consult with the claimants, when he entered 
 office, as to the course he thought proper to take to re-establish our 
 amicable relations with a foreign government ; and the Senate of 
 the United States approved his course by ratifying the treaty. It 
 was peculiarly proper to submit the claim to arbitration. Portugal 
 had not wronged us. This question was one of naked legal liability, 
 with no circumstance for complaint against her. Should the 
 United States have refused to submit such a question to a disinte- 
 rested power, and used her superior force ? But though it is, per- 
 haps, immaterial, the objection that he not only agreed to submit 
 this claim to arbitration without the consent of the claimants, but 
 against their protest, is not sustained by the proof. The proof (see 
 Gov. Marcy's letter), shows, on the contrary, an acquiescence in this 
 course ; and a circumstance which is conclusive of this is dwelt on 
 as the principal burden of complaint in the conduct of this business 
 subsequently that is, the offer of a written argument, to be sub- 
 mitted to the arbitrator. 
 
 Eighth. That this treaty was submitted and ratified 10th March, 
 without any possible knowledge of the circumstances, in proof 
 of which Mr. Webster's letter of 19th March, 1851, to Mr. Hadduck, 
 is cited, and Senate Doc. 7, 1st sess. 33d Congress. Captain Reid 
 had notice of the proposed treaty in September, 1850. He had, 
 therefore, all the time and opportunity necessary to make known 
 his wishes. 
 
 The objections to the form of the treaty are frivolous : 
 
 1. The 2d article recites, as a reason for submitting the claim to ar- 
 bitration, that the parties could not agree on a question of public law 
 involved in it ; the daim was to be submitted, not the question of law. 
 
 2. The objection, that the claim of the owners was not presented, 
 is not well taken ; because, the treaty refers the claim to arbitra- 
 tion as presented by the American Government, which included a 
 claim for the vessel ; and the award was pronounced upon a claim 
 relative to the American privateer " General Armstrong." 
 
 3. It is not necessary to specify that the arbitrator shall hear
 
 BRIEF OF THB U. 8. SOLICITOR 99 
 
 and decide upon the law and the facts which shall be submitted by 
 the claimants through their government that is implied from the 
 office of arbitrator. 
 
 Ninth. That the Government refused to forward the written 
 argument of the agent of claimants, because there was no provision 
 in the treaty for other argument than that contained in the corre- 
 spondence. This refusal of the Secretary, and the absence of a pro- 
 vision for argument by the treaty, seems to have been the chief 
 ground relied on by the advocates of the claim in the Senate against 
 the United States. This objection proceeds on the ground that the 
 party was denied a hearing, and it was asserted that it could only have 
 been in consequence of this defect in the treaty, or of the errone- 
 ous construction of it, by which a hearing was denied the claimants, 
 that the claim was lost, as the decision was so palpably against the 
 weigh of evidence. The misapprehension of the evidence I have 
 already considered. If the court will compare the arguments in 
 behalf of the claim, by Messrs. Hopkins, Clay, and other official 
 personages, which were laid before the President of the French, with 
 that presented by Mr. Reid to Mr. Webster, it will be perceived 
 that nothing was lost in point of argument or good taste by sup- 
 pressing Mr. Reid's production. 
 
 Whilst Mr. Webster's competence for his position is not question- 
 ed, it is insisted that by entering into an arrangement by which the 
 facts and arguments developed in this voluminous correspondence 
 were submitted to the arbitrator without further argument, he com- 
 mitted an error so gross as to entitle the citizen to have recourse to 
 Government when the adverse decision was made, because it is in- 
 sisted that if Mr. Reid's argument had been read by the French 
 President, he would certainly have decided otherwise. 
 
 Mr. Bayard, at page 28 of the speeches in the Senate printed by 
 the claimant, says : " In the diplomatic correspondence in reference 
 to the transaction, can the honorable Senator point out to me any 
 time token the Portuguese government took the ground that in point of 
 /act the first aggression was committed by the General Armstrong ?"
 
 100 BB1Q GENERAL AKMSTKONG, 
 
 Xo, sir no. The attention of our own representatives was neve? 
 called to such a thing. No such question of fact was ever made ; no 
 such investigation of the testimony was necessary, because the govern- 
 ment of Portugal never intended to assume such a ground; but the 
 Emperor of France, on an unargued case, gets rid of the subject by 
 assuming a matter of fact which the whole testimony goes to deny." 
 (See same remarks, p. 412, Congressional Globe, January 26, 1855.) 
 It is surprising that the honorable Senator to whom Mr. Bayard 
 referred did not point out to him that the Portuguese government 
 had not only insisted that the " General Armstrong " was the aggres- 
 sor, but had maintained that position in every reply given to our 
 demand upon her to indemnify the claimants, begining with De Cas- 
 tro's answer in 1843, which is the first response made to the demand 
 on Portugal. (See the letter, p. 15, Doc. 53. See also Count 
 Tojal to Mr. Hopkins, p. 33, September 29, 1849. Same to isff. Clay, 
 p. 49, March 9, 1850. Same, to same, p. 56, April 1850. Same to 
 same, p. 61, May 15, 1850. Same to same, p. 75, July 6, 1850. 
 Mr. Figaniere to Mr. Clayton, 27th April, 1850, p. 93. Same to 
 game, July 9, 1850, p. 107.) The replies of Mr. Hopkins and Mr. 
 Clay, to be found in this document, to the letters addressed to them, 
 also show that this position was taken by Portugal, and the argu- 
 ment turns on that point in a great measure. It is therefore a great 
 mistake to suppose, that the French President decided the case on 
 a new and nnargued point, started after the correspondence was 
 closed. It will be found also that Mr. Reid's argument, which Mr. 
 Webster refused to send to France, adds nothing to those embraced 
 in the protocol submitted to the Emperor, which, it appears by let- 
 ter to Mr. Hadduck, included all the correspondence. 
 
 Tenth. That the arbiter chosen was the Prince-President, and 
 before the award was delivered he became Emperor, contrary to 
 the treaty stipulations. The treaty merely stipulated for the 
 reference to the " sovereign potentate or chief of some friendly 
 nation who shall be chosen by the two high contracting parties." 
 
 The evidence shows that the award was rendered while Louis
 
 BRIEF OF THE U. 8. 8OLICITOE. 101 
 
 Napoleon was Prince-President, and the minister of the United 
 States was notified of the fact during the presidency. (See Senate 
 Doc. No. 24, 32nd Cong. 2d sess.) The fact that copies of the 
 award were not received till after the Prince-President had assumed 
 a new title, cannot affect the validity of the award, any more than 
 if he had died in the meantime, and the award had been certified 
 by his successor in office. 
 
 Ekventh. Claimants protested when the award was made known 
 to them ; but Secretaries Everett and Marcy informed them that it 
 ivas conclusive. 
 
 Twelfth. The award does not decide any question of public law, 
 .ind therefore does not comply with the terms of the treaty. (This 
 objection answered under point eight ; see also thirteen.) Misstate- 
 jaents in the award, Portuguese arguments adopted, and inference 
 ihat Portuguese had a hearing when denied to American (require 
 jo answer.) 
 
 Thirteenth. Award contradictory. 1. Charges violation of 
 neutrality on both belligerents. (This was true.) 2. Weakness 
 of Portuguese power at Fayal, and Captain Reid's own resort to 
 arms. These are two independent and distinct grounds for exempt- 
 ing Portugal from liability, which are not inconsistent with each 
 other. One, that the local officers were not appealed to in proper 
 time ; and the other, that when appealed to, they had not the 
 power to protect the American brig. 
 
 The denial, by the claimants, that the first aggression proceeded 
 from the brig, has been considered above. But the fact stated 
 and held to be equally conclusive by the award, that the weakness of 
 the Portuguese garrison at Fayal rendered all armed intervention 
 impossible, is recognized as true by Captain Reid in his protest. 
 (See p. 5, Doc. No. 14.) But whilst the fact is admitted, the law 
 is controverted, and it is maintained that Portugal is bound to 
 indemnify the owners, &c., of the brig, although they were unable 
 io protect her. 
 
 This doctrine asserted by Messrs. Hopkins and Clay, and the
 
 102 BBIG GENERAL ARMSTKONG. 
 
 claimants, dogmatically, is unsustained by authority. Against it 
 the Portuguese ministers, in the letters above cited, refer to 
 numerous authorities, and maintain their position by great force 
 of argument. (See particularly Mr. Figaniere to Mr. Clayton, 
 p. 101, July 9, 1850. See also the speeches of Senators Fessenden, 
 404-'5, 645 ; Dawson, 409 ; Stuart, 403, in Congressional Globe, 
 vol. 30 ; also the speech of Senator Pearee, of Maryland, in vol. 
 31, p. 158, and quotations therein from Wheaton r s Elements of 
 International Law, directly in point.) 
 
 It is contended, also, that the duty of a neutral extends only to 
 the institution and prosecution of proceedings for restoration of the 
 specific property. Captain Reid having set fire to his own vessel, 
 he put it out of the power of Portugal to institute any proceedings 
 for this purpose, or in any way to try judicially the controversy as 
 to the first aggression. (See Wheaton's Elements, pp. 497 -'8.) 
 
 On their own showing, it is plain that the claimants had no 
 right to indemnity from Portugal. 
 
 If it were otherwise, and on the weight of the evidence now 
 submitted, the court should be of opinion that the arbitrator, to 
 whom the evidence on both sides was submitted, had decided 
 against law and evidence, the award is nevertheless conclusive. 
 (Boston Water-power Co. vs. Gray, 6 Met. 131.) 
 
 Nor would it be less conclusive if the court should be of opinion 
 that the imputations upon Mr. Webster's management of the case 
 were well founded. The doctrine that the government must pay 
 such individual losses as may be supposed to result from the incom- 
 petency, negligence, or bad management of officers in the conduct 
 of public affairs, is inadmissible ; no such pretension was ever set 
 up before. (See opinion of Attorney-General Gushing, on appli- 
 cation of the Peruvian government for indemnity for neglect of duty 
 by marshal of California.) The allegation that the payment of the 
 other claims was a bonus for the submission of this to arbitration, 
 is an attempt to show a consideration. But if in point of fact the 
 United States had entered into the arbitration in consideration of
 
 BRIEF OF THE D. 8. SOLIOITOE. 103 
 
 each payment, the payment was to private claimants, and the 
 arbitration was not a release of Reid's claim. 
 
 This effort to put this claim on the footing of the claims for 
 French spoliations, is considered and answered by Mr. Benjamin, 
 page 53*7, Congressional Globe, February, 1855 ; who shows also 
 conclusively, that if every allegation made in support of the claim 
 was fully sustained, it is wholly untenable, and that the allowance 
 of it will be followed by most mischievous consequences. 
 
 The act of 1834, donating $10,000 to the captain and crew 
 referred to by Mr. Fessenden and others, shows that Congress has 
 already recognized their gallantry appropriately ; and when it is 
 recollected that the brig was fitted out to carry on privateering as 
 a business speculation, I think that recognition sufficient. 
 
 But whether sufficient or not, is not here properly to be con- 
 sidered, as this claim ought to be decided on its legal merits, 
 without regard to the gallantry displayed by the officers and crew 
 of the " General Armstrong " at Fayal. 
 
 The heroic commander and his crew are justly entitled to the 
 honor and gratitude of the country, all admit ; but the recital of 
 that honorable claim ought not to be mixed up with the argument 
 on a claim for money dependent on legal considerations, and 
 involving principles which ought to be decided without respect to 
 
 M. BLAIR.
 
 104: BRIG GENERAL ARMSTRONG. 
 
 TUBSDAT, 27W Novembtr. 
 
 MR. BLAIR, the solicitor for the Government, having concluded his 
 argument yesterday, 
 
 CHARLES O'CoNOR, Esq., for the Claimants, addressed the Court 
 as follows : 
 
 MAY IT PLEASE THE COURT, 
 
 The claim now presented for adjudication may be placed 
 upon several distinct grounds. 
 
 In the first place, we contend that the General Armstrong was 
 employed by her officers and crew in the service of the United 
 States, and against the public enemy, under such circumstances that, 
 on being advised of the facts, and of the great benefit which 
 resulted therefrom to the country, it became the government, as a 
 matter of equity, to adopt the act, and to idemnify the parties 
 against the expense incurred. 
 
 Our second general head embraces the following elements. The 
 General Armstrong, whilst lying in the Port of Fayal, was entitled 
 to absolute protection from the Portuguese government. That 
 protection was not afforded ; in violation of the neutrality of that 
 port, she was destroyed by the forces of a British squadron ; and 
 for this delinquency on the part of Portugal, her owners had a 
 perfect right, by the law of nations, to be fully indemnified. The 
 owners had themselves no legal capacity to prosecute this claim 
 directly ; but, on establishing its validity, they were entitled to 
 redress through the action of their own government against that of 
 Portugal. The United States, accordingly, investigated the claim 
 decided in favor of its justice, assumed the control of it, and 
 entered upon the duty of enforcing it. Instead, however, of 
 prosecuting it to an issue by legitimate means, the government 
 receded from its duty in that respect, and actually extinguished the 
 claim, whereby a right has accrued to the owners to demand 
 compensation from the public treasury.
 
 SPEECH OF CHARLES o'cONOE, ESQ. 105 
 
 Each step in the argument by which these conclusions are 
 arrived at, seems to us quite clear and intelligible, but the learned 
 Solicitor for the government has advanced a great variety of 
 objections, and it is principally in answering these that we shall 
 engage the time and attention of your Honors. 
 
 The absence of precedents has been urged against us, and we 
 have been called upon to produce from the books of the common 
 law, some instance of an action brought, a trial had, and a 
 judgment rendered for the plaintiff upon a claim like the present. 
 We cannot comply with this unreasonable demand ; but neither 
 can we admit that our claim should suffer on that account. The 
 nation itself is here a defendant, responding to the claim of a 
 private suitor for reparation of injuries sustained a thing unparal 
 leled in jurisprudence. The Court itself is the first-born of a new 
 judicial era. Consequently, we cannot hope to find among the 
 narrow rules and practical formulae which ordinarily govern in 
 determining mere questions of property between citizen and citizen, 
 the lights which are to guide its judgment. As a judicial tribunal, 
 it is not merely new in the instance: it is also new in principle. 
 So far as concerns the power of courts to afford redress, it has 
 heretofore been fundamental that the Sovereign can do no wrong. 
 This court was erected as a practical negative upon that vicious 
 maxim. Henceforth our government repudiates the arrogant 
 assumption, and consents to meet at the bar of enlightened justice 
 every rightful claimant, how lowly soever his condition may be. 
 
 Whence is such a tribunal to extract the principles by which its 
 action is to be governed by which it shall test and allow or 
 disallow the claims which may come before it ? In ordinary cases 
 of specific rights declared by some particular statute or regulation, 
 its path may be easy. But in those extraordinary cases which are 
 dependent upon principles not hitherto falling within the judicial 
 authority, which have never been enforced against the State, and 
 which, consequently, courts have never declared in their judgments 
 or illustrated in their opinions, difficulties may be encountered at
 
 BEIG GENERAL ARMSTRONG. 
 
 . i 
 
 the outset. To meet and surmount these, if they exist, is one of 
 the high and responsible duties devolved upon your Honors, as 
 pioneers in this newly opened chapter of juridical science. 
 
 Though without exact precedents, you are not wholly without 
 chart or compass. A reference to the origin and growth of 
 jurisprudence, in instances the most analogous, will furnish a 
 Sufficient guide. 
 
 Rights and their correlative duties are divided into two classes, 
 that is to say, the perfect and the imperfect. The only difference 
 between these classes is in external circumstances intrinsically or 
 morally there is none. Perfect rights are those which may be 
 enforced by established remedies ; perfect duties are those the 
 performance of which may be coerced : a right of imperfect obligation 
 is one for the enforcement of which no remedy is provided. Jurispru- 
 dence, as administered by human tribunals, deals only with the means 
 of enforcing rights which are recognized as perfect: but like all moral 
 sciences it is capable of improvement. As the general mind of a 
 nation advances in that freedom which is the result of increased 
 knowledge, the legislative authority will constantly enlarge the 
 sphere of action assigned to jurisprudence, and increase its power 
 of establishing justice. Jurisprudence is only the means, justice is 
 the end. Jurisprudence is of human origin : justice is an attribute 
 of divinity; pre-existent of all created things, eternal and immu- 
 table. Its authority is not derived from any human code, either of 
 positive institution or of customary reception; its decrees are found 
 in the voice of God speaking to the heart which faith has purified 
 to receive and reason enlightened with capacity to understand. 
 
 When thus aided by the legislature, jurisprudence is enabled to 
 enlarge the circle of perfect rights, by furnishing from time to time, 
 new instrumentalities for enforcing justice. Est boni judicis ampH- 
 are jurisdictionem, is a sound and unexceptionable maxim ; for the 
 exercise of jurisdiction is but giving to men in a practical form, the 
 behests of divine justice, and enforcing their observance. This ia 
 well illustrated by the rise and progress of the English law. In
 
 SPEECH OF CHARLES o'cONOB, ESQ. 107 
 
 the lofty growth of equity, by the side of its stunted rival, the 
 common law, we see by what means rights founded iii justice and 
 conscience, but not yet recognized by positive law, may rise in 
 grade, acquire recognition, and become enforceable by adequate 
 remedies. In that example, this court will find the best lights 
 for its government. In our early law-books, we find it urged, and 
 admitted, that "Every right must have a remedy." But Lord 
 Chief Justice Vaughan stripped this common-place of all its force, 
 by replying "Where there is no remedy there can be no right." 
 The common law judges of England, always acted upon the princi- 
 ple embodied in this remark. From their rigid adherence to it, 
 arose the necessity of a distinct jurisdiction the power of equity 
 to compel an observance of those duties which conscience enjoined, 
 but which positive law had provided no means of enforcing. 
 
 The ordinary courts of law, are not created to declare or enforce 
 justice in the abstract, or justice in general. (See note a. to De 
 Bode vs. Regina, 13 Queen's Bench R. 387.) Their function is to 
 effectuate such human rights only as, in the existing stage of its 
 progress, jurisprudence is enabled to bring within the sphere of its 
 remedial forms, leaving all others to be sought by entreaty, and 
 yielded by free-will. The judge is obliged to dismiss every claim, 
 however just, for enforcing which he cannot find an appropriate 
 writ in the register; and, consequently, the regret of the Bench 
 and a deep censure upon the defendant, is often expressed in the 
 same breath with a judgment denying the remedy sought. 
 
 This was strikingly exemplified in the case of Jackson vs. Bar- 
 tholomew, 20 Johnson's Reports, 28. An honest farmer seeing his 
 neighbor's wheat-stack on the verge of being consumed by fire in 
 the owner's absence, voluntarily assumed the task of saving it, 
 and did so at a slight cost. Reimbursement being churlishly refused, 
 he brought an action in a justice's court, and the rustic magistrate, 
 not learned enough to know that legal policy sometimes stifles the 
 voice of conscience, decided in favor of the plaintiff. The defend- 
 ant appealed; and, when reversing the decision on the ground that
 
 108 BKIO GENERAL ARMSTRONG. 
 
 for a service, however beneficial, rendered without a previous 
 request, no action lay, the Supreme Court of New York denounced 
 the defendant's conduct as " most unworthy." In this censure all 
 honest men must concur. No one could doubt that had the owner 
 of the wheat been present at the moment of peril, he would have 
 requested aid, and promised compensation. An honest man would 
 have conceded this, ratified his neighbor's kind intervention, and 
 promptly repaid his expenditure; but selfishness saw that this was 
 a duty of imperfect obligation, and a callous conscience dishonorably 
 refused to perform it. 
 
 The equity jurisdiction of Great Britain has been considered as an 
 anomaly in legal science. Continental jurists seem never to have 
 comprehended it though it could easily be shown that no civil 
 society ever existed in which there were not some remediable forms of 
 injustice which Lex non exade definit sed arbitrio boni viri permittit. 
 (Story's Eq. Jur. 8. 9.) Institutions which are novel in form, 
 will always excite criticism and opposition, however harmonious 
 they may be, in principle, with what has gone before. But the 
 difficulties which may beset the path of this court, at the outset of 
 its high career, cannot be greater than those which surrounded the 
 early English chancellors in their efforts to mitigate the rigor and 
 supply the imperfections of positive law. They had no judicial 
 precedents to guide them in stilling the waves of contention; the 
 great unwritten law of natural justice, alone governed. They 
 claimed to deal with matters binding in conscience only, and the 
 power to enforce its dictates. At every step they had to con- 
 tend with the argument now urged against us, that there was no 
 legal remedy, and consequently the law left it optional with the 
 defendant how to demean himself in the premises. As in the pre- 
 sent case, the law the law was dinned into the ears of the 
 court by the advocates of wrong, with loudness and perti- 
 nacity; but the clamor was unavailing. Without aid from pre- 
 cedents, but guided by principles, the courts grappled with, 
 and mastered the devices of iniquity. Justice I Equity 1 Con-
 
 SPEECH OF CHARLES o'cONOK, ESQ. 109 
 
 Science! words without definition, and incapable of being defined, 
 alone prescribed their jurisdiction, and neither legal or politi- 
 cal science had any further connection with the new cases 
 arising before them, than to aid in solving the question how far 
 state policy would admit of right being done to the injured suitor. 
 
 To the precise extent which a due regard to public policy would 
 admit, the masters of equity encroached upon the territory of 
 imperfect duties, making firm land wheresoever they trod. Thus, 
 they gradually redeemed from the outlawry to which ignorance or 
 inexpertuess had consigned them, a large class of imperfect rights, 
 and enforced a large class of duties before deemed imperfect 
 because not enforceable but which were always obligatory in the 
 eyes of God, and were always voluntarily performed by honest men. 
 
 Prior to the institution of this Court, all rights, as against the 
 nation, were imperfect in the legal sense of the term every duty 
 of the nation was a duty of imperfect obligation. There was no 
 judicial power capable of declaring either no private person pos- 
 sessed the means of enforcing the one, or coercing the other. These 
 rights may be deemed still to remain, in one sense, imperfect ; for 
 the decrees of this Court cannot be carried into execution by 
 authority of the Court itself. But effectual progress has been 
 made toward giving form and method to the administration of jus- 
 tice between the nation and the individual. This Court enables 
 the latter to obtain an authoritative recognition of his right. No 
 more is needed; for in no case can a State, after such a recognition, 
 withhold payment and yet retain its place in the great family of 
 civilized nations. The ordinary jurisdiction of the Court bears a 
 strong resemblance to the narrow cognizance at common law ; but 
 its extraordinary jurisdiction over " all claims which may be 
 referred to it by either house of Congress " extends its power to 
 the utmost limits attainable by juridical science in its fullest develop- 
 ment. In this aspect, its dignity and importance as a governmental 
 institution cannot be too highly appreciated. As a means by which 
 rightful claims against the government may be readily established,
 
 110 BRIG GENERAL ARMSTRONG. 
 
 and those not founded in justice promptly driven from the portals 
 of Congress, it must exercise a most healthful influence. But we 
 are authorized to look higher than the mere convenience of suitors, 
 and the dispatch of public business. Enlightened patriotism will 
 contemplate other and more important consequences. Caprice can 
 no longer control. Here equity, morality, honor and good con- 
 science must be practically applied to the determination of claims, 
 and the actual authority of these principles over governmental 
 action ascertained, declared and illustrated in permanent and abid- 
 ing forms. As step by step, in successive decisions, you shall hav 
 ascertained the duties of government toward the citizen, fixed their 
 precise limits upon sound principles, and armed the claimant with 
 means of securing their enforcement, a code will grow up, giving 
 effect to many rights not heretofore practically acknowledged* In 
 it will be found enshrined for the admiration of succeeding ages an 
 honorable portraiture of our national morality, and a full vindica 
 tion of the eulogium recently pronounced upon our people by the 
 highest authority in the parent State. " Jurisprudence," says Lord 
 Campbell, in the Queen vs. Millis, 10 Clarke 4* Finelly, 711, "in 
 the department of human knowledge to which our brethren in the 
 United States of America have chiefly devoted themselves, and in 
 which they have chiefly excelled." 
 
 Whilst we assert that this Court does not stand super antiquas 
 vias in anything which concerns mere procedure, and, consequently, 
 that the call for judicial precedents is idle and unreasonable, we 
 admit that cases arising here must be determined in conformity 
 with established principles. It has been truly said, that " you 
 have no power to invent rights" but it must be conceded that you 
 have express power to invent remedies. The seventh section of the 
 act creating the court provides that you shall prepare to be laid 
 before Congress for enactment, the requisite bill or bills in those 
 cases which shall have received your " favorable decision, in such 
 form as, if enacted, will carry such decision into effect." This, 
 according to Mr. Justice Ashhurst, in Pasley vs. Freeman, 3 T. R>
 
 SPEECH OP CHARLES o'cONOR, ESQ. Ill 
 
 63, is the precise method of dealing with cases which are without 
 precedent in the known practice of judicial tribunals. 
 
 We agree that you have jurisdiction only over that class of cases 
 which are claims properly so called. The applicant for bounty must 
 go elsewhere. Grace and favor, if it is ever proper to bestow them, 
 must be bestowed as heretofore, by Congress, without your inter- 
 ference. But claims claims which would be entitled, as between 
 individuals, to recognition and enforcement according to known 
 principles of law, or upon known principles of equity, are to be vin- 
 dicated and established by this court. We assert no more than 
 this, except so far as the nature of things may warrant a practical 
 distinction between a sovereign state and an individual. In this 
 way the sphere of equity may, as against the government, admit of 
 some expansion. In a case like that of the wheat-stack, cited from 
 Johnson's Reports, a court constituted as this is, could find no diffi- 
 culty in enforcing the claim against the government. If a large 
 quantity of public property, or any other great public interest, were, 
 at this moment, in danger of being sacrificed, under circumstances 
 rendering it impossible to apply to the Executive for instructions or 
 for the means of saving it, we insist that a reference of the volun- 
 tary salvor's claim would enable this court, as keeper of the nation's 
 conscience, to award remuneration. We say that Government 
 could not, any more than the owner of the wheat-stack, conscien- 
 tiously withhold compensation in such a case ; and that, if the claim 
 should be sent here, this court would be bound to enforce it. State 
 policy may forbid that equity should go so far in a case between 
 individuals as to compel a man to make a request, as it were nunc 
 pro tune. But why may not government ascertain, through a 
 proper judicial investigation, the existence and binding force in 
 equity of a claim upon it, which, in a private case, no honest man 
 would hesitate to acknowledge^-which no gentleman could repu- 
 diate without dishonor ? 
 
 When war was declared in 1812, this republic was yet in the 
 infancy of her power. We could scarcely be said to possess either
 
 
 112 BRIG GENEKAL ABMSTBONG. 
 
 au army or a navy. Though, in the achievement of oar indepen- 
 dence we had won high renown, yet physical strength, the only attri- 
 bute which can enforce respect for the rights of a nation, was not 
 ours to any great extent, and was not imputed to us by any. Our 
 commercial marine had often been plundered with impunity. Even 
 our ships of war had not been exempt from search and impressment. 
 War with France, our early friend, had failed to protect us from 
 insult, and it was in an absolutely necessary defence of our exis- 
 tence as an independent state, that we were compelled to ven- 
 ture upon hostilities with the greatest power of ancient or modern 
 times. The invasion of our neutral rights in navigating the ocean 
 induced the measure, the vindication of them was its immediate 
 aim and object. Annals of Thirteenth Congress pp. 1431, 1419 
 to 1427. 
 
 Our naval reputation at that time may be judged by the romantic 
 temerity with which the Alert, a pitiful little English gun-boat, in the 
 first month of the war bore down upon the Essex, a 32 gun frigate. 
 
 Perhaps we seized upon an opportune moment, for Britain was 
 engaged in an European war which tasked her utmost energies. 
 Even with this advantage on our side, the contest was very 
 unequal ; but, when at length, the gigantic power of Napoleon was 
 prostrated, what was our condition ? The patroness of France 
 under her restored dynasty, the foremost in a holy alliance of all 
 monarchical Christendom, with her thousand ships, and her victo- 
 rious legions relieved from every other occupation, Britain stood 
 prepared to " crush us at a blow." Such, all will remember, was 
 the language of the times ; and naught seemed to interpose 
 between her resolve and its execution but a brief time as much as 
 might be needed to conquer intervening space. 
 
 Her force was soon felt. The sacred Capitol of our Union the 
 spot consecrated to liberty by the immortal Washington fell into 
 the hands of her mercenaries. The thunder of her vauntings was 
 heard along our coasts, and at what vital point her apparently 
 resistless force was next to fall upon us, none could tell.
 
 SPEECH OF CHAELES o'cONOK, ESQ. 113 
 
 At that critical juncture (September 9th, 1814) the General 
 Armstrong set sail from New York upon a cruise designed to harass 
 our powerful antagonist. On the seventeenth day out she cast 
 anchor in the neutral port of Fayal, for the purpose of taking in a 
 supply of water. Soon after, on the same day, a British squadron, 
 under the command of Captain Lloyd, consisting of a seventy-four 
 gun ship, a frigate of thirty-eight guns, and a sloop of war carry- 
 ing eighteen guns, entered that port for the same purpose. Two 
 ( conflicts took place between the American privateer, and a body 
 of armed men sent in boats from the British fleet to assail her, 
 which terminated in the destruction of the privateer. 
 
 This violation of neutrality, and the consequent loss of our pro- 
 perty, entitled us to demand compensation as claimants upon the 
 justice of Portugal. 
 
 Questions of law have been raised as to this asserted liability of 
 Portugal. These we must dispose of in the first place. 
 
 It is said, that Captain Reid, having himself resorted to violence, 
 and struck the first blow, must be deemed the aggressor, however 
 apparent it may have been that such resort was necessary to save 
 his vessel from capture. It is also said, that the obligation of a 
 neutral to make compensation in such cases is not absolute ; that 
 if a neutral, at the time and place of the aggression, employs all 
 the means in his power to prevent it, this is all that can be 
 required. Of course, in this connection, it is conceded that if there 
 be negligence in providing, at such time and place, the amount of 
 defensive force which might, under all circumstances, be reasonably 
 required, or if there was a failure in the due and effectual employment 
 of such force, from pusillanimity, gross ignorance, or want of skill 
 on the part of the neutral, responsibility might ensue. What sin- 
 gular questions for discussion between nations would arise in the 
 investigation of these points ! In following out to its consequences 
 this idea of limiting national responsibility within the compass of 
 national power, it is said that property unlawfully seized by a third 
 power, within the territory of a neutral, must be restored by the
 
 114: BRIG GENERAL ARMSTRONG. 
 
 com ts of the latter, in case it should come within their reach ; but 
 that when the property is destroyed, or for any other reason cannot 
 be thus subjected to legal process, the neutral is only bound to use 
 his best exertions to procure compensation. 
 
 To illustrate what is meant by this employment of his best 
 exertions, it is argued that a neutral is not bound to go to war in 
 such a case ; that it would be unreasonable, and, consequently, 
 unjust to require a feeble State to involve itself in hostilities with a 
 powerful aggressor merely for the sake of obtaining justice for the 
 stranger; that friendly negotiation and urgent entreaty for compen- 
 sation constitute the whole duty of a weak neutral State, whose ter- 
 ritory has been unlawfully converted into a theatre of war by a 
 powerful belligerent. 
 
 Notwithstanding their palpable absurdity, these doctrines arc 
 gravely insisted on. From a perusal of the correspondence between 
 the two governments, it might be thought that some of the able and 
 patriotic negotiators who, from time to time, sought the enforce- 
 ment of the claim against Portugal, conceded these doctrines ; for they 
 condescended, in arguing against them, to discuss the evidence, 
 relying, as they well might, upon its insufficiency to excuse Portugal, 
 even if the rule of law was as contended for. We shall adopt the 
 same line of argument ; but we protest, at the outset, against any 
 such inference as against us. We do not acquiesce in any of these 
 doctrines. They are founded in the grossest misconception of pub- 
 lic law, and a singular blindness to the plainest dictates of common 
 sense. We proceed to prove this, seeking thereby to establish that 
 in point of law our claim was perfectly valid against Portugal, 
 until that government was released by the acquiescence of the 
 United States in Louis Napoleon's award. 
 
 England could in no event be held responsible to the United 
 States or to the aggrieved parties. As between belligerents them- 
 selves, it is the right of each to make war upon the other, his sub- 
 jects and property, wheresoever he can find them. "A capture 
 made within neutral waters is, as between enemies, deemed to all
 
 SPEECH OF CHARLE8 o'cONOE, ESQ. 115 
 
 intents and purposes rightful. It is only by the neutral sovereign, 
 that its legal validity can be called in question. The enemy has no 
 rights whatever ; and if the neutral omits or declines to interpose 
 a claim, the property (so captured,) is condemnable, jure belli, to 
 the captor." "This," (says the Supreme Court in The Ann, 3d 
 Wheatorfs R. 435) "is a clear result of the authorities, and the doc- 
 trine rests on well established principles of public law." True it is, 
 that Great Britain was responsible over to Portugal for any sum 
 which she might be obliged to pay and hence, no doubt, the 
 British influence in procuring Louis Napoleon's award but that 
 was a question altogether between Portugal and Great Britain. 
 We had no claim whatever against the latter. 
 
 It is affirmed, on all hands, that belligerents are bound to abstain 
 from hostilities within neutral territory, and that any violence, 
 except in self-defence, committed by them within such territory is 
 unlawful. It is unlawful as between the neutral and each of the 
 belligerents. The injured belligerent may claim indemnity from the 
 neutral, the neutral may demand reimbursement from the aggressor. 
 We refer to the case last cited, and also to 1 Wheaton 405 ; 4 
 Wheaton 52; Ibid. 298. 
 
 The rule requiring a total abstinence from hostilities within 
 neutral territory, has, of course, the same limitation which is 
 imposed by reason and necessity in every other case where violence 
 is prohibited. The right of self-defence is rightly called the first 
 law of nature. The arm of the civil magistrate cannot always be 
 extended to prevent injury to the citizen, and when it is not pre- 
 sent for his defence, he is not bound to submit unresistingly to 
 death or wounds. When the danger is imminent, and safety cannot 
 otherwise be purchased, the assailed party may always defend him- 
 self, repelling force by force. The same authorities which assert 
 that a belligerent forfeits all claim to protection from a neutral 
 sovereign by commencing hostilities within his territory, admit this 
 right of self-defence. And this, let it be noted, is not the privilege 
 of returning a blow ; that, indeed, is revenge or retribution not self-
 
 116 BEIG GENERAL AEM8TEON0. 
 
 defence. Self-defence must foresee, anticipate, and defeat the tmlaw* 
 fol design whilst only threatened or meditated. Nothing else is 
 defence. Chief Justice Marshall says, in The, Anne, 3 Wheaton 435, 
 that "Whilst lying in neutral waters" a ship is "bodnd to abstain 
 from all hostilities except in self-defence" Again he says, that ne 
 vessel in sach waters " is bound to submit to search, or to account 
 (to the belligerent) for her conduct or character." In a case some- 
 what analogous to the present, The Marianna Flora, 1 1 Wheaton, p 
 1, Mr. Justice Story says, in reference to defensive force used bj 
 the commander of a ship menaced by another, "He acted, in oui 
 opinion, with entire legal propriety. He was not bound to fly or t 
 wait until he was crippled. His was not a case of mere remote 
 danger, but of imminent, pressing, and present danger. He had 
 the flag of his country to maintain, and the rights of his cruiser to 
 vindicate." It will be seen, therefore, that Captain Reid's acts in 
 defence of his vessel were lawful; that they involved no breach of 
 duty on his part towards^ Portugal, and that they in no degree 
 lessened the duty of Portugal to protect him. 
 
 What is sometimes called local and temporary allegiance, but is 
 more properly termed obedience, is due to every government from 
 aliens and strangers sojourning within its jurisdiction. The neutral 
 state forbids hostilities within its territories between the armies or 
 navies of belligerents, precisely as the civil magistrate forbids 
 violence between individual enemies. By his laws and regulations f 
 he absolutely supersedes the law of nature, and promises absolute 
 protection in return for obedience. We may admit the truism that 
 neither men nor nations can go further in the performance of their 
 obligations than the employment of their utmost ability. But an 
 obligation like that tinder consideration is never, in itself, theoreti- 
 cally, nor for any practical purpose, subject to any such limitation. 
 A private man's obligations are no longer enforceable in fact, when 
 his whole means of payment are exhausted ; but after that event, 
 he remains charged with the residue of his indebtedness precisely in 
 the same degree as before. Until relieved by death, or released by
 
 SPEECH OF CHAKLE8 o'cONOK, ESQ. 117 
 
 bankruptcy, he is still bound to his creditor. Poverty and weak- 
 ness may plead for indulgence, but neither can rightfully demand a 
 release. The obligation remains. So it is with nations: they must 
 perform their duties or cease to exist There is no bankrupt act 
 for them ; political extinction is their only refuge from the penalties 
 of unredeemed responsibility. 
 
 Although some crude remarks of publicists may be found afford- 
 ing a slight pretext for the argument, it cannot be maintained 
 that the duty of a sovereign to afford full protection to the stran- 
 ger within his gates, whose presence he permits, is anything less 
 than absolute, or that the duty in this respect of a weak nation is 
 any less than that of a strong and powerful one. 
 
 When a private individual breaks the peace and does an injury 
 to another, the sovereign power subjects him, by due process of 
 law, to mulcts and penalties. His whole estate, if necessary, is 
 sequestered for the remuneration of the injured party. Precisely 
 the same measure of retribution is to be meted out for the like 
 offence when committed against persons or property, by a foreign 
 nation. 
 
 Belligerents are not permitted to fit out ships of war, or augment 
 their force in the ports of a neutral; but all nations allow their 
 ports to be visited by the vessels of those with whom they are ia 
 amity, for the purpose of obtaining those necessaries of life which, 
 are equally useful in peace or war. Therefore, it was entirely pro- 
 per for the American privateer and the British squadron, to enter 
 the friendly port of Fayal, as they did, to supply themselves 
 with water. But it was the duty of both to preserve the peace 
 while there, and that duty was enforced to the utmost against the 
 privateer, by the Portuguese authorities. After the first attack 
 upon the General Armstrong, and in anticipation of the second, 
 Captain Reid sought the Governor's permission for thirty of his 
 countrymen, then on shore at Fayal, to come on board and assist in 
 the defence of his vessel. The application was peremptorily refused; 
 and Louis Napoleon in his award, commends, as worthy of all
 
 118 BBIQ GKNEEAL AEM8TEONO. 
 
 praise, the act of the Governor in thus effectually preventing an 
 augmentation of the American force. We agree that this was 
 performing precisely, and to the letter, the duty of Portugal 
 towards England. But we insist, however excusable the Governor 
 may have been, from want of power, that the supreme government 
 of Portugal was bound effectively to have prevented hostilities 
 against those who were restrained by its laws from employing their 
 own means of self-defence. 
 
 The learned solicitor asserted, that the Portuguese government 
 was not bound to protect strangers, any more than it was bound to 
 protect its own people. Perhaps it was not. It is the duty of every 
 government to protect its own people, and, when violence has been 
 committed upon them, to enforce redress from the wrongdoer to the 
 whole extent of such wrongdoer's ability. The same duty exists to 
 preserve the peace within neutral territory, between belligerent 
 nations. The reason is obvious - t the local authority compels the belli- 
 gerent parties to keep the peace, and it is therefore bound to protect 
 them. This seems to us so plain, so obvious, that no argument is 
 necessary to enforce it. Indeed, the general proposition is not denied ; 
 we have only to combat an attempt to fritter it away in practice by 
 subtle distinctions. The extent of the liability, upon the part of the 
 neutral power, to furnish compensation from its own treasury, for the 
 losses incurred in consequence of its failure to keep the peace within 
 its territories, is alone disputed. If full reparation is not due to 
 the stranger, what is he entitled to ? The attempts to answer this 
 question are ludicrous! It is said that if a vessel is captured in 
 neutral territory, and afterwards comes within the same territory, it 
 should be restored to the original owner; but if it is carried off, 
 and does not return within the neutral territory, then the neutral is 
 not liable. If this is true, then the total destruction of property 
 involves no liability at all, for the neutral cannot deliver up that which 
 has ceased to exist. As violence cannot always be prevented, what 
 is the duty of the neutral in those cases where destruction ensues? 
 The learned solicitor says, the nation whose territory has been.
 
 SPEECH OF CHAKLES o'cONOB, ESQ. 119 
 
 t 
 
 invaded, is to remonstrate with the aggressor; it is to appeal to 
 him in the name of justice, reason, and friendship, to make amends 
 to the injured party. And it is said, if these means fail, the injured 
 party can claim no further redress. Can this be law ? The sove- 
 reign to whom the application is made, is the unrighteous transgres- 
 sor; he knows that the reparation sought is for his enemy. He 
 knows also that he has only to refuse, and the obligation of his 
 neutral friend will be satisfied. By a simple refusal, he can close 
 the transaction, and settle the account for ever. If this were really 
 the extent of the neutral liability, the whole notion of a right to 
 indemnity would be the merest farce. 
 
 We insist that the obligation of the neutral power is to prevent 
 hostilities, if practicable ; and, if that be impracticable, then to 
 make compensation for the injury sustained. 
 
 The notion of limiting the duty to prevention or to the employ- 
 ment of such force as may happen to be at the spot for that pur- 
 pose, is extremely absurd. It can rarely be in the power even of 
 the greatest States to maintain at every point of their territories a 
 force adequate to prevent violations of their neutrality. Indeed, 
 when the force exists, the local officer is not always justifiable in 
 employing it. If the commander of a dozen British seventy-four 
 gun ships, lying in one of our ports, where they had touched for 
 provisions, should seize a Russian ship, refuse to surrender her to 
 the Marshal, and, as Lloyd did at Fayal, threaten, in case of inter- 
 ference with his capture, to bombard the town, and slaughter its 
 inhabitants, would the local authorities be bound to plunge at once 
 into the horrors- of irregular war ? In most cases the force on the 
 spot would be wholly inadequate to effective resistance. But when 
 it happens otherwise, we doubt the expediency of such a resort. 
 Vastly less mischief would result, in ordinary cases, from leaving 
 the wrong to be redressed by the supreme power. Then, if war 
 should come, it would be met with fitting preparation. The armed 
 warrior, not the women and children of a peaceful town, would 
 encounter its brunt. We deny that the Governor of the Azores
 
 120 BRIG GENERAL ARMSTRONG. 
 
 could properly have employed his military force in open war upon 
 the fleet of a powerful nation, which was not only the friend and 
 ally, but, it may be said, the protector of his sovereign. Even if 
 his force had been adequate, the act would have been rash and 
 injudicious. It is quite clear that in such cases the local authori- 
 ties should most generally submit to the violence, leaving it to the 
 supreme government to apply the proper remedy. And it is equally 
 clear that indemnity is the only remedial justice which can ordinarily 
 be had. If the neutral state has any duty to perform, it is the pro- 
 curement of such indemnity. 
 
 In the obligations which thus rest upon neutrals, there is no dif- 
 ference between strong and weak nations. We commonly say that 
 in the eye of the law all men are equal. So, in international law, 
 all sovereigns are on a perfect equality. Consequently, a state, 
 however feeble, cannot maintain its rank and position in the family 
 of nations, without performing its public duties. When it fails 
 in this respect, it must necessarily fall exactly into the same con- 
 dition as an individal engaged in trade, who, failing to pay his 
 debts, and to perform the duties of his station, loses all credit and 
 position among his fellow-men. This doctrine is reasonable : no 
 other would be tolerable. A feeble state has at its command a 
 suitable remedy for every such case. When wronged by a power- 
 ful nation, it may invoke the reprobation of mankind, by a proper 
 exposition of the act. The force of opinion is great, and nations 
 have been constrained to respect it in the worst of times. If this 
 resort should fail, it may form an equal alliance with other states 
 of its own class, or it may seek the protection of one more power- 
 ful. If it can be supposed that none of those means would enable 
 it to redeem its obligations, nothing can be clearer than that it 
 should declare itself bankrupt, and relinquish its pretensions to 
 sovereignty. 
 
 To prove that for injuries to property sustained by a belligerent, 
 within the territory of a neutral, from hostilities there unlawfully 
 prosecuted against him by his enemy, the neutral sovereign is only
 
 SPEECH OF CHARLES O'CONOK, ESQ. 121 
 
 bound to afford the measure of redress which may be within his 
 ability, your Honors are referred to the text of certain treaties 
 between the United States, England, France, Russia, and Holland. 
 We there find stipulations to the effect that each nation engages to 
 " use its utmost endeavors to obtain from the offending party full 
 and ample satisfaction for the vessel or vessels so taken," or to 
 " protect and defend by all means in its power the vessels, &c., and 
 restore the same to the right owner." These treaties are relied upon 
 as full evidence of the sense entertained by the great maritime states, 
 as to the extent of the obligations of neutrals in the particular now 
 under consideration. It is claimed that they are not merely strong, but 
 decisive evidence of the jus gentium. We admit the proposition in its 
 broadest extent. It only remains, then, to inquire what is meant 
 by the " utmost endeavors" of a nation, or by the employment of 
 " all means in its power." Our government is one party to these 
 treaties. Do we, when promising to use our utmost endeavors and 
 all means in our power, intend to say that we will' humbly pray 
 for justice, and earnestly expostulate against injustice ? Does this 
 involve a complete exhaustion of all the means in our power ? And 
 if, indeed, we are so weak and so degraded as this, is Great 
 Britain is powerful and martial France, with more than forty mil- 
 lions of warlike subjects equally so ? The small kingdom of Hol- 
 land is also a party to these treaties. Surely these same words, in 
 the same treaty, do not mean one thing as applied to one party, 
 and a different thing as applied to the other party ? We respect- 
 fully insist that the rule, as expressed in the text of our writers on 
 international law, and in these treaties, means nothing less than 
 that the neutral state is bound to obtain, or to make, restitution 
 for every outrage committed upon friendly nations within its limits, 
 peacefully, if it can, forcibly, if it must 
 
 A few words in Mr. Wheaton's comment upon these treaties, are 
 thought to favor the doctrine of limited liability now contended for. 
 In Mr. Lawrence's edition of the Elements of International Law, p. 
 491, the author says : " They were not bound to make compen-
 
 122 BRIG GENERAL ARMSTRONG. 
 
 sation, if all the means in their power were used and failed in their 
 effect." But he does not, by example or otherwise, give the least 
 clue to his notions concerning the means which must be used by 
 the " high contracting parties " in order to fulfill the obligation 
 created by these words. Observing upon the jurisdiction over 
 captures in neutral territory exercised by the Admiralty Courts 
 of the neutral, he says it is " exercised only for the purpose of 
 restoring the specific property, and does not extend to the infliction 
 of vindictive damages, as in ordinary cases of maritime injuries." 
 This sentence is the learned solicitor's leading authority for the 
 position that when the specific property is destroyed, the neutral 
 has no duty to perform. An important distinction, however, 
 exists between the obligations of a sovereign power, which are 
 to be recognized and performed through its executive, and the 
 much more limited field of admiralty jurisdiction. Of course, 
 a Court of Admiralty could neither draw upon the public treasury, 
 nor levy war upon a foreign power. But we can find in Mr. 
 Wheaton's work no evidence that he ever intended to sanction the 
 doctrine that sovereign power can excuse itself from performing 
 the duties of sovereignty on the plea of weakness. 
 
 We have been asked whether we mean to insist that Portugal 
 was bound to go to war ? We answer, certainly not. Portugal 
 owed us no such obligation. The question, so far as war is con- 
 cerned, was, whether she owed that measure to herself? Her 
 obligation was to yield us protection, and having failed in that, 
 to indemnify us. Whether she would prosecute a claim against 
 Great Britain by the sword or otherwise, for reimbursement, was 
 altogether her own affair. If she was so weak or so pusillani- 
 mous as to waive her rights in this respect, we certainly could 
 not complain. We only say that her high state amongst the 
 powers of earth required her to protect or indemnify us, and forbid 
 her to plead weakness or poverty as a ground of exemption. 
 
 The unlimited liability of the neutral in such cases is asserted by 
 the highest authorities on international law. It is asserted in the
 
 SPEECH OF CHAELES o'cONOB, ESQ. 123 
 
 published speeches of nearly every legislator who has spoken upon 
 this claim. All our administrations without exception have main- 
 tained it. Portugal herself conceded it in 1814, and even Louis 
 Napoleon admits it. He says in his award, that if Captain Reid 
 had not released her by his own conduct, Portugal was under an 
 obligation " to afford him protection by other means than peaceful 
 intervention." The original liability of Portugal is therefore 
 manifest, unless Captain Reid, by some misconduct on his own 
 part, forfeited the protection which she owed him. Whether he so 
 misbehaved is a question of fact which we will discuss hereafter. 
 
 The next question of law is, whether the enforcement of this 
 claim against Portugal devolved upon the United States as a 
 public duty. 
 
 In return for the allegiance claimed by the sovereign, says Mr. 
 Justice Blackstone, the sovereign " is always under an obligation 
 to protect his subjects at all times and in all countries." And 
 that this right of the subject "can never be forfeited by any 
 distance of place or time, but only by misconduct." Wendell's 
 Blackstone, pp. 370, 371, and notes. 
 
 The Lord Chancellor of England, on the argument of Baron 
 de Bode's case, 16 Eng. L. & Eq. Reports, p. 23, says, *' It is 
 admitted law that if the subject of a country is spoliated by a 
 foreign government, he is entitled to obtain redress through the 
 means of his own government. But if from weakness, timidity, or 
 other cause on the part of his own government, no redress is obtained 
 from the foreigner, then he has a claim against his own country." 
 
 These are the maxims of monarchy at this day. It was the 
 pride of her, who in ancient times, gave law to men and nations, 
 that in the most distant climes and among the most barbarous 
 people, "I am a Roman citizen," was a certain passport to safety. 
 Shall it be said that our republic yields a less perfect protection to 
 her citizens? We trust not. Mr. Justice Parker, one of the 
 most eminent of American jurists, recognizes the rule that in such 
 cases there rests " an obligation on the government of the United
 
 124 BRIG GENERAL ARMSTRONG. 
 
 States to procure redress for its citizens, or itself to reimburse 
 them." Farnam vs. Brooks ; 9 Pickering's Reports, 239. On 
 this head there is no lack of precedents. Half the diplomacy of 
 nations has been devoted to obtaining securities for their merchants 
 when subjected in person or property to the jurisdiction of other 
 states : half the treaties on record contain provisions for ascertain- 
 ing dues, and making compensation on account of past failures in 
 this respect, and all of them abound with mutual pledges of 
 protection for the future. From the Father of his Country to our 
 present Chief Magistrate, no executive has sent to Congress an 
 annual message unmarked with recognitions of this duty. We 
 defy reference to a single instance in which the President has failed 
 annually to apprise Congress of his progress in pending efforts to 
 obtain for onr citizens redress of grievances suffered by the acts or 
 omissions of other nations. 
 
 The duty of onr government in this respect, cannot be denied. 
 It is not denied. The questions are how far did that duty extend ? 
 was there any failure in performing it ? and, if so, is the govern- 
 ment responsible for the consequences ? 
 
 Responsibility is denied on many grounds. 
 
 Ill the first place, we are told, the government of the United 
 States, in prosecuting claims against foreign powers for redress of 
 grievances suffered by our citizens, is merely the agent of th 
 injured individual ; and, assuming as applicable the same rules 
 which obtain in the common law, concerning the private relation of 
 principal and agent, or, more exactly speaking, master and servant, 
 it is said that the claimants did not object to the treaty with Por- 
 tugal, before it was made, or, afterwards, so protest against it, or 
 against the action had under it, as to screen themselves from the 
 imputation of having ratified the act of their servant, by implied 
 consent or acquiescence. It is said the subsequent action of the 
 claimants amounts to acquiescence acquiescence is assent assent 
 is ratification, and theh comes in this common maxim of servile 
 law, " a subsequent assent is equivalent to an original command."
 
 SPEECH 0V CSAELE8 o'coNOK, ESQ. 125 
 
 On the other hand, and with equal confidence, it is asserted that 
 the government is the sole judge what claims of the citizen it will 
 enforce, in what manner, at what time, by what means, and to 
 what extent, it will enforce them. It may, says our learned oppo- 
 nent, relinquish them, submit them to arbitration and to any kind 
 of arbitrament it judges to be expedient in reference to the general 
 interests of the republic; it may accept a compromise, or it may 
 release them without compensation, or for a consideration of benefit 
 or convenience to the public. In fine, its power over the whole 
 subject, is claimed to be absolute in the most comprehensive sense 
 of the word, no responsibility attaching to its action, whatever that 
 action may be. 
 
 It is true, that when laying down this latter proposition, the 
 government solicitor became appalled by the enormity of his own 
 doctrine. First, relieving his conscience by an empty admission 
 that it would be wrong, nay, iniquitous, to sacrifice a private right 
 to the public convenience, he endeavored to close this part of the 
 discussion, by asserting that nothing of the kind had ever been done 
 in the whole practice of the government. But feeling, as he 
 reached it, that this assertion begged the very question before the 
 court ; he returned like a stout-hearted champion to his starting 
 point, and insisted that the power was vested in our government 
 thus to deal with, traffic in, and for its own benefit, dispose of the 
 private right of the citizen, without any responsibility whatever. 
 
 The two heads of exemption from liability thus advanced for the 
 government, are manifestly inconsistent. It must be admitted that 
 they cannot stand together j we hope to show that neither of them 
 is well founded. 
 
 How can the government be an agent or mere servant, liable to 
 be restrained by the master's prohibition, or affected by his subse- 
 quent censure, and, at the same time, possess absolute discretionary 
 power over the whole subject, free from control, restraint or 
 responsibility ? The inconsistency is too glaring. 
 
 An individual despoiled by the rapacity, or aggrieved by the
 
 BRIG GENERAL ARMSTRONG. 
 
 negligence of a foreign power, cannot lawfully wage war, or, in 
 any other form, prosecute directly a claim for indemnity. His 
 only remedy is to invoke the aid of his own government. By a 
 fundamental rule of the social compact, sanctioned by immemorial 
 practice, every community is bound to afford this kind of protection 
 to its members. And when a" sovereign state, in the performance of 
 this duty, appears as a prosecutor for redress of injuries, the claim- 
 ant and respondent are equal in power and dignity. The individual 
 wrong-doer, and the individual sufferer, are alike lost sight of. The 
 responding state cannot avoid liability, by delivering up for sacri- 
 fice its agent or subject ; neither is the claiming state to be 
 deemed a mere agent of the aggrieved person. It does not 
 act in the name, or by the authority of the injured individual ; but 
 in its own name, and right, as ultimate and paramount lord pro- 
 prietor of all things, and sovereign of all persons, within its juris- 
 diction. Between these " high contracting," or high contending 
 parties is the suit, and the trial ; between them must be the judg- 
 ment, whether obtained by negotiation, awarded by arbitrament, 
 or won by the sword. (5, Howard's U. S. R., 391) 
 
 As the respective nations are the parties, and the only known or 
 recognized parties, to the controversy, it necessarily follows that 
 any act of the claiming power which bars its right of farther pro- 
 secuting the claim, works an extinguishment of the claim itself is, 
 in substance and effect, a release to the respondent. 
 
 The methods of pursuing such a claim are negotiation, and fail- 
 ing that, war, or, if the respondent will consent, arbitration. In 
 all cases which admit of its application, the latter is a resort 
 favored by wisdom and humanity. When a claim is mutually sub- 
 mitted to arbitrament and determined by the arbiter, that law of 
 honor and good faith which nations must obey (8 Paige 534), 
 declares the award to be final, unless a just and defensible cause 
 can be assigned for disregarding it. If, upon its publication, 
 neither party protest against it, the award becomes conclusive, 
 whatever may be its moral or legal vices.
 
 SPEECH OF CHARLES o'cONOKj ESQ. 12 T 
 
 In the present case, a perfectly valid claim against Portugal has 
 been destroyed by the action of the government. We will prove 
 this by the evidence before your Honors. The award of Louis 
 Napoleon stands in our way, and is relied upon as an estoppel. In 
 connection with our review of the merits, we hope to show that the 
 award is void as against us ; first, forVant of jurisdiction; secondly, 
 because the government did not place before the arbiter, but 
 expressly withheld from his view important evidence, which afforded 
 him an opportunity to decide upon facts from his own notions or ex 
 parte stories, and sanctioned his availing himself thereof ; thirdly, 
 because it refused us permission to be heard before the arbiter, or 
 to present an argument to him ; and lastly, because even upon the 
 imperfect proofs presented to him, the award is manifestly partial 
 and unjust. 
 
 Pursuant to the treaty with Portugal, by which this claim was 
 to be submitted to the arbitrament of a third power, the Secretary 
 of State, on the 20th of March, 1851, " in accordance," as he states, 
 " with suggestions made by M. de Figaniere" (the minister of Por- 
 tugal), instructed Mr. Hadduck, our' representative at Lisbon, 
 to prepare a protocol, with certain documents annexed, to be 
 authenticated by the respective governments, and laid before the 
 arbiter. The President of the French Republic was first named ; 
 and in case he should decline the office, King Oscar, of Sweden, was 
 to be chosen in his place. 
 
 This lettter of instructions contains a very singular passage : it is 
 in these words : " You will understand, of course, that these 
 copies (i. e., the papers to be annexed to the protocol) are limited 
 to such communications as have passed between the American 
 legation and the Portuguese government aP Lisbon, and between 
 this department and the Portuguese legation in Washington." 
 The historical fact, that at the time of the occurrence, and when 
 the proofs in support of the claim were first made up and presented, 
 the Portuguese government was seated, not at Lisbon, but at Rio 
 Janeiro, renders it easy to perceive why the Portuguese minister 
 suggested this singular limitation of the proofs to be laid before the
 
 128 BRIG GENERAL ARMSTRONG. 
 
 arbiter. His suggestion was craftily made and unwarily adopted 
 Its effect was to carry into the record to be submitted to the 
 arbiter only so much and such parts of the evidence as happened 
 to be incorporated with a renewed correspondence on the subject, 
 which was commenced in 1834, about twenty years subsequently to 
 the occurrence of the outrage* for which redress was sought. We 
 will presently show that this instruction caused to be suppressed at 
 least one piece of evidence, which was of great force, and, as we 
 conceive, perfectly conclusive upon the very point of Louis Napo- 
 leon's judgment. By the 12th July, 1851, the Department of 
 State was apprised of its mistake ; and, in a dispatch of that date 
 to Mr. Hadduck, after calling his attention to the restrictive 
 phraseology used in his previous instructions, Mr. Webster says: 
 " To provide, however, against the omission of any important part 
 of the earlier portion of the correspondence, I mean that which 
 passed in 1814 and 1815 in Rio Janeiro, where the Court of For 
 tugal at that time resided, and which it could not haw leen intendea 
 to exclude, I transmit you herewith " copies, &c. 
 
 The latter instructions were issued from the Department of Stats 
 at Washington, on the 12th July, 1851 ; but, on the 9th day of 
 the same month, three days previously, the protocol had been com 
 pleted at Lisbon, signed and sealed by the respective agents of 
 Portugal and of the United States, and forwarded to the arbiter 
 This is expressly stated in Mr. Hadduck's letter to the Stato 
 Department, dated 11th July, 1851. 
 
 If any important part of the evidence was left out by this mis- 
 adventure in preparing the documents, it must be confessed that 
 the case was not properly prepared. The solicitor has felt the 
 pressure of this circumstance. He could not help feeling it ; for 
 we have read from the dispatch of July 12, 1851, an express 
 admission by the Department of its own error. The answer now 
 given to this objection is, that everything material in the prior cor 
 respondence was, in some form, repeated in that which was annexed 
 to the protocol. But the fact is otherwise. 
 
 Louis Napoleon's award admits expressly, or impliedly, every
 
 SPEECH OF CHARLES o'CGNOB, ESQ. 129 
 
 proposition of law for which we contend. So far as the law is con- 
 cerned, it asserts but a single position against us, to wit: that a 
 belligerent who commences hostilities within the territory of a 
 neutral, thereby forfeits all claim to protection, and this we have 
 never denied. The Supreme Court of the United States has often 
 so decided, and we have never set up any pretence to the contrary. 
 The Anne 3, Wheaton's R. 435. The . point of the award is, that 
 Captain Reid and his gallant companions were the first aggressors. 
 It goes upon a mere naked question of fact. How manifestly 
 important, then, was it that the contemporaneous correspondence, 
 and all the testimony taken at the time and bearing on this point, 
 should have been laid before the arbiter. 
 
 It seems that Commodore Lloyd, the commander of the British 
 squadron, soon after the transaction, caused to be prepared, and 
 sworn to by Lieutenant Fausset, an affidavit giving the British view 
 of the facts. No full copy of this affidavit was furnished to the 
 arbiter. A portion of it is found in the letter of Mr. James B. 
 Clay, our minister at Lisbon, to Count Tojal, Portuguese Minister 
 of Foreign Affairs, dated November 2d, 1849. That part is mani- 
 festly false ; but great aid in developing its falsehood would almost 
 necessarily have resulted from a review of its whole contents. 
 Here was a serious failure on the part of our government in its 
 obligation properly to collect and present the proofs. 
 
 Immediately after the occurrence at Fayal, the Marquis D'Aguiar, 
 the Portuguese Minister of Foreign Affairs, addressed a let- 
 ter to Lord Strangford, the Minister Plenipotentiary of Great 
 Britain, resident at the Court of Rio Janeiro, in which he 
 denounced the outrage upon the General Armstrong as an " auda- 
 cious" and an "unprovoked attack." He also called upon the 
 British government to make " satisfaction and indemnity not only 
 to the subjects of Portugal, but for the American privateer, whose 
 security was guarantied by the safeguard of a neutral port." la 
 the same letter, the Portuguese minister " nails to the counter," as 
 a base falsehood, the pretence of Captain Lloyd, embodied in 
 
 10 
 
 I
 
 130 BEIG GENEEAL ARMSTRONG. 
 
 Lieutenant Fausset's affidavit, and which Louis Napoleon has 
 sought to consecrate as truth, thereby, as far as in him lay, falsify- 
 ing American history, and dishonoring the American name. 
 
 Thus speaks the Marquis D'Aguiar: " His Excellency (Lord 
 Strangford) will likewise observe the base attempt of the British 
 commander, at the time he commenced the unprovoked attack on 
 the American privateer, 'to attribute those violent measures to the 
 breaking of the neutrality on the part of the Americans in the first 
 instance, by repelling the armed barges that were sent for the pur- 
 pose of reconnoitering that vessel, advocating,- with the most mani- 
 fest duplicity, that they (the Americans) were consequently the 
 aggressors ; but what appears still more surprising, is the arrogance 
 with which the British commander threatened to consider the terri- 
 tory of his Royal Highness (the Prince Regent of Portugal) as 
 enemies, should the Governor adopt any measures to prevent them 
 from taking possession of the American privateer, which they sub- 
 sequently plundered and set on fire." 
 
 Some allusions to this letter were, indeed, contained in the cor- 
 respondence submitted to the arbiter; but no copy of it, or of these 
 important parts of it, was laid before him. This, the learned solici- 
 tor tells us, was an unimportant omission, because the Portuguese 
 Minister of State could only judge from the evidence; that his view 
 of it, if erroneous, was not conclusive upon his government, and that 
 Louis Napoleon was bound to exercise an independent judgment 
 on the evidence itself. Admitting, for the sake of the argument, 
 that all the facts were laid before Louis Napoleon (which was not 
 the case), it cannot be maintained that this letter did not contain 
 important mattej for his consideration. He had assumed to decide 
 a contested fact of considerable antiquity. The witnesses were not 
 personally produced before him ; no truth-eliciting cross-examina- 
 tion could be had, no oral dissection or discussion of the proofs was 
 allowed. Was it an unimportant fact that the defendant in the cause 
 Portugal herself had, through her highest authorities, solemnly, 
 and at the very moment of the transaction, acknowledged the
 
 SPEECH OF CHARLES o'cONOK^ ESQ. 
 
 truth of Captain Reid's statement, and stamped as base duplicity 
 and falsehood the story of Captain Lloyd and his lieutenant ? 
 Contemporaneous opinion is strong evidence as to ancient facts. 
 When it is considered that this opinion came from our opponent in 
 the cause under arbitrament, and that at the time of pronouncing 
 it Portugal was not only the friend and the ally, but, it may be 
 said, a dependent of Great Britain, its force as evidence cannot be 
 too highly appreciated. If not technically conclusive, who will say 
 that it was not very persuasive ? 
 
 Here was another grievous failure in the duty of duly presenting 
 the proofs in support of the claim on Portugal. 
 
 There was another, and, as we regard it, still a greater failure. 
 It is a very fair presumption that Captain Lloyd conceived the 
 design of seizing the Armstrong for a special purpose. To facilitate 
 aggressions upon our coast and in our rivers, small vessels were 
 greatly needed. The desire to supply this need has always seemed 
 the most probable solution of Lloyd's flagitiously illegal conduct. 
 It so happens that one document included in the Rio Janeiro cor- 
 respondence, and wholly omitted in the protocol, distinctly proves 
 this motive. Immediately after the principal or midnight combat, 
 William Greaves, the British Consul at Fayal, addressed to the 
 Portuguese Governor of the Azores a letter, in which is found this 
 statement : " The (British) commander will send a brig from his 
 squadron to fire on the American schooner ; and if the said brig 
 should encounter any hostilities from the castle, or your Excellency 
 should allow the masts to be taken from that schooner (the General 
 Armstrong), he will regard this island as an enemy of his Britannic 
 Majesty, and will treat the town and castle accordingly." 
 
 Lloyd threatened to bombard the town and castle of a friend and 
 ally of his sovereign, in case the authorities should permit the Ameri- 
 cans to dismantle or destroy their own vessel so as to unfit her 
 for service. Anxiety to save an enemy from suicide, proves some 
 other motive than revenge. The desire to reduce him to captivity 
 and servitude can alone account for it.
 
 132 BRIG GEffEKAL 
 
 * 
 
 All these important proofs haying been suppressed, it cannot be 
 said that the claimant's case was fairly tried before Louis Napo-* 
 Icon. According to the recordefl admission of that great jurist 
 and statesman, Daniel Webster, contained in his official letter of July 
 12, 1851, it was submitted in an imperfect and improper manner. 
 
 The failure to arrange the proofs properly so called, separately 
 from the mere arguments contained in the correspondence, seems to 
 hare misled Louis Napoleon, as to the nature of the submission, or 
 to have furnished him with a pretence for assuming a power which 
 dur government could not have intended to confer. 
 
 The whole frame of his award implies that in respect to the facts, 
 he did not consider himself bound by the documentary proofs, 
 annexed to the protocol, and that he assumed the power of ascer- 
 taining them aliunde. 
 
 For this purpose, we may fairly presume that he rambled whither- 
 soever he pleased into British history or into British table-talk- 
 He recites that he proceeded to judgment, " after having caused 
 himself to be correctly and circumstantially informed in regard 
 to the factt which have been the cause of the difference, AND after 
 having minutely examined the documents, duly signed in the namea 
 of the two parties, which have been submitted to our inspection by 
 the representatives of both powers.' 1 
 
 These words certainly imply that he sought proof of the facts 
 elsewhere, and afterwards examined the protocol with its attached 
 documents, as an additional or supplemental act. He did not 
 obtain what he calls his correct and circumstantial information, 
 olely and exclusively by a perusal of these papers. 
 
 Thus it appears that after having submitted the claim to an 
 arbiter, the government failed in its first duty as promovent. It not 
 only omitted to produce the evidence in its power, but expressly 
 withheld it at the instigation of the adverse party. It also fur- 
 nished the partial umpire with an excuse for assuming powers not 
 granted to him, and not intended to be conferred upon him. 
 
 To cap the climax of injustice in the measures by which this claim
 
 SPEECH OF CHARLES o'cONOE, ESQ. 133 
 
 was sacrificed, the claimants were refused a hearing before the arbi- 
 ter, or even the liberty of presenting to him a written argument in 
 support of their claim. This was one of those flagitious violations 
 of justice, against- which every honest mind must revolt. To reject 
 without a hearing may be well enough, or between a despot and 
 bis bond-slave ; it is not within the capacity of a judge. Prece- 
 dent, authority, reason and sentiment unite in condemning it. 
 
 The Supreme Court of Pennsylvania, in Falconer Sf Montgomery, 
 4 Dallas' Reports, 233, says, " The plainest dictates of natural 
 justice, must prescribe to every tribunal, the law that 'no man 
 shall be condemned unheard.' It is not merely an abstract rule or 
 positive right ; but it is the result of wise experience, and of a wise 
 attention to the feelings and dispositions of human nature. An 
 artless narrative of facts, a natural and ardent course of reasoning 
 will sometimes have a wonderful effect upon a sound and generous 
 mind ; an effect which the cold and minute details of a reporter 
 can neither produce nor supplant. Besides, there is scarcely a piece 
 of written evidence or a sentence of oral testimony, that is not sus- 
 ceptible of some explanation, or exposed to some contradiction. To 
 exclude the party, therefore, from the opportunity of interposing in 
 any of these modes (which the most candid and the most intelligent 
 of disinterested persons may easily overlook), is not only a privation 
 of his right, but an act of injustice to the umpire, whose mind might 
 be materially influenced by such interposition." 
 
 The case Sharp v, Bickerdike, 3 Dow's Parliamentary Reports, 
 102, arose upon an award made in Scotland. The award was not 
 impeached for any other fault than the neglect of the arbitrator, to 
 hear the parties, under a mistaken belief that he had consented 
 to waive that right. The positive law of Scotland, was, that no 
 award should be set aside, at the instance of either party, for any 
 cause or reason whatever, unless it was for bribery, falsehood or cor- 
 ruption in the arbitrator. Lord Eldon, delivering the judg- 
 ment of the House of Lords, said, that ' by the great principle of 
 eternal justice, which was prior to all these acts, &c., it was impos-
 
 134 BRIG GENERAL ARMSTRONG. 
 
 Bible that the award could stand. He added, " Even if he had 
 decidedly rightly, he had not decidedly justly." In these cases, 
 and in Elmendorf v. Harris, decided by the court of dernier resort, 
 
 4 
 
 in New York, 23 Wendell, 633 the awards, in question, were 
 unanimously set aside upon this principle. Following this line of 
 precedent, the court of Queen's Bench, in the very recent case of 
 Oswald v. Grey, 29 Eng. Law & Eq. R. 88, annulled aa award 
 for this cause, saying, "A more glaring departure from the rules that 
 ought to regulate the proceedings of persons sitting in the charac-- 
 ter of judges, it is impossible to conceive." 
 
 Another and a conclusive objection to this award appears. 
 
 As has been before observed, it goes upon a mere question of 
 fact, that is to say, the question whether the Americans on the 
 occasion in question, resorted to force before they were assailed, or 
 subjected to any indignity or peril ? 
 
 It never could have beeu the intent of the Executive or the 
 Senate in framing the treaty with Portugal, to submit that question 
 to arbitrament. A total insensibility to national honor, would 
 have been manifested in adopting such a course. 
 
 The correspondence between Portugal and the United States 
 shows that the former denied its liability on legal grounds. It was 
 affirmed, on the part of Portugal, that the duty of a state to afford 
 protection to foreigners within its territory was not absolute ; that if 
 such state employed the means of protection in its power, it was not 
 responsible for the inefficacy of such means. The absurdity of this 
 position, as applicable to the case in hand, has been already shown, 
 but suffice it to say, in this connection, that Portugal gravely insisted 
 on it. The treaty (Art. 2.) recites, as the cause of the arbitrament, 
 that " The high contracting parties, had not been able to come to 
 an agreement, upon the question of public law, involved in the case of 
 the American privateer, General Armstropg, destroyed by British 
 vessels, in the waters of the Island of Fayal, in September, 1814." 
 
 This recit .1 proves that the intent was to refer a question of law 
 only, not to refer a question of fact . Only two questions of law
 
 SPEECH OF CHAELES O'OONOK, ESQ. 135 
 
 can be imagined as arising in the case ; first this silly pretence of 
 immunity from the duties of sovereignty, on the ground of weakness, 
 set up by Portugal ; and secondly, whether, if the General Arm- 
 strong was the first assailant, she had thereby forfeited her claim to 
 protection. 'The latter point, as we have shown, was well settled 
 in the affirmative by our own courts, and was never disputed by us; 
 consequently, it is plain, that but one question of law was in dis- 
 pute. This question it might have been the part of wisdom to refer, 
 for no third power could ever have decided it against us. Louis 
 Napoleon himself was obliged to determine it in our favor. 
 
 Did the Department of State, when preparing the protocol, 
 intend to submit the question of fact to Louis Napoleon? We 
 have shown that the treaty gave it no authority so to do; but we 
 ask whether, through misapprehension of his powers, temporary 
 inadvertence, or from any other cause, Daniel Webster, in the 
 exercise of his high functions as representative of the honor and 
 interests of his country, did really intend to submit to the arbitra- 
 ment of a third power the question of fact, whether the British or 
 the Americans were the aggressors in the memorable combat of 
 September, 1814, at Payal? We cannot believe that such an 
 intention existed. We could not admit it without abandoning for 
 ever our deep and unfeigned admiration of that illustrious jurist 
 and statesman. Such an act would have been the extreme of folly. 
 It involved, by an inevitable necessity, the loss of the claim, and 
 what was far worse, a lasting reproach upon our country. 
 
 In that midnight conflict, a little American privateer of two hun- 
 dred and forty tons burthen, carrying seven guns and ninety men, 
 defeated the force of a whole British fleet, killing of her assailants, 
 according to the English historians themselves, within one-sixth as 
 many men as Britain lost in the great naval victory off Cape St. 
 Vincent. 
 
 The strength of this comparison will be best exhibited by the 
 facts. In that action there were fifty ships of war engaged, and 
 Britain's immortal Nelson captured the Santissiraa Trinidada of 136 
 guns, and three other three-deckers.
 
 136 BRIO GENERAL ARMSTRONG. 
 
 Making due allowance for the disparity of the forces engaged, 
 looking with severely exact justice to precise facts, and judging by 
 results, there is not a transaction in the whole history of naval war- 
 fare which reflects such signal lustre upon the gallantry of the 
 actors as the defense of the General Armstrong. True, the heroes 
 who perished in the fight had mouldered into dust, and no monu- 
 ment honored their resting-places. Those who survived it had 
 nearly all passed from earth, and the very few yet alive were near 
 the close of their earthly pilgrimage, and were pining in want and 
 penury, sad memorials of that neglect which is proverbially the 
 recompense of public benefactors. But the glory of their achieve- 
 ments was not forgotten. It belonged to the American name : it 
 had irradiated our naval diadem for forty years, and had become a 
 matter of history. Was an American Senate likely to forget its 
 duty toward these recollections ? Was Daniel Webster the man to 
 deliver over this bright page in our annals, to be obliterated by the 
 dictum of an European prince ? 
 
 Honor cannot attend or result from unlawful violence. Unable 
 to deny the physical results, Britain had sought to stigmatize the 
 conduct of Captain Reid as an unprovoked aggression, in breach of 
 Portuguese neutrality, contrary to the law of nations, and deserv- 
 ing only the contempt and abhorrence of mankind. Desperate as 
 may seem the folly of imputing to this little cock-boat aggressive- 
 ness against a whole fleet, any resort was preferable to a confes 
 sion of the facts. Accordingly this pitifully absurd tale was placed 
 upon the records of the British admiralty, and thence transferred to 
 the annals of the royal navy. Britain had sat in judgment on the 
 fact, in her national capacity, and sanctioned this story with her 
 high approval. On the other hand, the government of the United 
 States, in all its departments, and under several successive adminis- 
 trations, had testified its full belief in the statement of Captain 
 Reid. From these sources, the literature of the respective nations 
 had taken opposing opinions. The respective historians of Britain 
 and of the United States stood before the world in direct conflict as 
 to the fact, and were, of course, to descend to future times as rival
 
 SPEECH OF CHAELE8 o'cONOK, ESQ. 137 
 
 claimants of credibility on this question. Its solution involved no 
 matter of mere pecuniary interest, territorial aggrandizement or 
 other worldly profit of any kind ; it was a question of national 
 honor or shame. 
 
 Did any nation ever submit such a question to the arbitrament 
 of an umpire ? To admit it to be a question for trial was to 
 embrace infamy ? As well might a high-toned gentleman charged 
 with some scandalous act by a known and avowed enemy, refer the 
 slander to a mutual friend, with authority to decide, upon proofs, 
 whether or not he was a scoundrel. Honor decides such questions 
 for itself, reposes on its own known rectitude for a protection, or 
 vindicates itself by more active means. It never reposes in a trus- 
 tee, an agent, or an umpire, the power of consigning it to infamy. 
 
 One of our reasons for denying that Mr. Webster could ever have 
 intended to refer to Louis Napoleon the question of fact whether 
 the Armstrong was the aggressor, is that the result must neces- 
 sarily have been against his country and his fellow-citizens. 
 
 It is a principle of universal law, that the affirmative must be 
 proven by a preponderance of evidence. Equal colliding forces pro- 
 duce a state of rest, as equal weights in the scales produce an 
 equipoise. It follows that whenever the opposing proofs as to a 
 disputed fact are equal, the party who asserts the fact must fail. 
 This, however true in theory, is rarely, if ever, applied in practice. 
 Some circumstance affecting the credit of a witness or of a 
 document produced on the one side or the other, almost always 
 turns the scale; and the verdict or decision goes, accordingly, upon 
 the theory of full credence being given to one side, and denied to 
 the other. Thus, a judicial forum decides between parties, and 
 resolves the doubtful point upon a nice scrutiny of the proofs, res- 
 ponding according to its view of the right, notwithstanding that its 
 decree may possibly wound the honor of one party and his wit- 
 nesses, by impliedly imputing to them intentional misrepresentation. 
 
 Now it so happens, as any one can in a moment see, that if the 
 question of fact as to who was the first aggressor was to be submit-
 
 138 BKIG GENERAL ARMSTRONG. 
 
 ted in this case, the United States would hold the affirmative, and 
 the witnesses would be in direct conflict. Consequently a judg- 
 ment could not be formed in our favor without thus implicating the 
 witnessess of our adversary; whilst, on the other hand, the arbiter 
 could decide against us upon the mere philosophical principle that a 
 perfect balance being produced, it did not become him, as a friend 
 and ally of each, to disbelieve either. 
 
 The treaty provided that the submission should be made " to a 
 sovereign potentate or chief of some nation in amity with both the 
 high contracting parties." It was well known that the true party 
 for whom Portugal appeared in the case was Great Britain. 
 Whatever Portugal might be compelled to pay to us, Great 
 Britain would of course, be held to reimburse. But, besides all 
 this and hence this bitter, long-continued, unyielding opposition 
 to this claim by Portugal, her ally the honor of Great Britain 
 was deeply involved in the issue. Great Britain, for a wonder, was 
 then " in amity " with the whole civilized world. She was on terms 
 of the closest amity with both the chrysalis royalty of France, and 
 with Oscar of Sweden, the only potentates contemplated by the 
 protocol of submission. The witnesses on our side were private 
 citizens. They had not even an official recognition to connect them 
 with our government, in the technical consideration of an European 
 sovereign, so that discrediting them might be deemed a direct 
 offence to the nation. On the other hand, the opposing witnesses 
 were public officers, servants, and agents of Great Britain. With- 
 out taking into view, as additional reasons, or make-weights, 
 toward the same conclusion, the intimate relations for mutual 
 support and protection which exist between the sovereigns of 
 Europe, is it not manifest to the most simple-minded observer, 
 that no one of them, consistently with a prudent regard for his own 
 high interests, could ever assume the office of arbiter upon a matter 
 of fact between two independent sovereign powers, and pronounce 
 a decree stigmatizing the public agents of either as perjured ? 
 
 It was never denied that Captain Reid fired the first gun.
 
 SPEECH OF CHAELEB o'cONOE, ESQ. 139 
 
 Prima facie then, he was the agressor. To justify this, and fix 
 upon the British forces the inception of hostilities, it was necessary 
 to prove affirmatively the menacing approach of an armed enemy. 
 This was an affirmative of the class which it is most difficult to 
 establish by proof. Captain Reid and his men could do no more 
 than swear to it, as they did, and by way of confirmation, affirm 
 the distinct fact, that the fire was returned from the British boats. 
 But the defeated commandant of the assailing force could easily 
 deny this, and he had denied it. Nor was this a case in which, 
 from the nature of the thing, affirmative testimony has a superiority 
 over negative. There was no room for mistake or oversight on the 
 British side. Lieutenant Fausset knew whether his men were 
 armed or not ; and he swore they had no arms. Of course, if they 
 had no arms they could not have returned the American fire. 
 In addition to the rule that the affirmative must be proved by 
 a preponderance of testimony, there was a principle in close affinity 
 to it, which any one could see led inevitably to our defeat in the 
 umpirage. As to the hostile intent of the approaching British 
 flotilla, Captain Reid could only act upon circumstances affording 
 a presumption of such intent. 
 
 Had he abstained from firing any longer than he did, it is 
 probable that his deck would have been covered with an over- 
 whelming armed force before a blow was struck. Perhaps no 
 wound would ever have been given on either side. Perhaps every 
 privateersman would have been suddenly seized and pinioned by 
 superior numbers, and the gallant little Armstrong, instead of 
 perishing gloriously amid her vanquished enemies, might have been 
 employed to carry rapine and desolation to our defenceless homes 
 and firesides. As it was always admitted that in the first combat 
 Captain Reid repelled the assailing force whilst it yet held no more 
 commanding position than that of menace, proof of an aggressive 
 intent by those in the British boats was indispensable to our success; 
 and the proof on that head could only be circumstantial. On the 
 other hand, Lieutenant Fausset could swear positively that no such
 
 14:0 BRIO GENERAL ARMSTRONG. 
 
 intention existed. He could say Captain Reid was mistaken, and 
 thus, in the most polite style imaginable, entitle himself to the 
 Imperial award. 
 
 How hopelessly desperate, then, was the case treated as a 
 question of fact considering who was the arbiter and the conse- 
 quences to result from the decision. 
 
 In this connection, we do not question the equal fitness of Louis 
 Napoleon as an arbiter with any other European potentate. It 
 was not to be expected that any sovereign of Europe would 
 convict the British officers of perjury. He could not otherwise 
 conform to the known policy of his class, than by finding, as he 
 did, that the fact was not proved. Consequently it would have 
 been a gross error to submit a fact of this kind to th deter- 
 mination of snch an arbiter. He could not afford to act judi- 
 cially, to scrutinize the evidence fairly, or to determine the fact 
 justly. It would have been not only a grievous error in national 
 policy, but a palpable failure in duty to the country, and to the 
 claimants. No American who regards the honor of his country, 
 will ever admit that the Senate of the United States intended to 
 submit to any earthly arbitrament the question of national honor 
 which Louis Napoleon has assumed to decide. No friend or honest 
 admirer of Daniel Webster will ever admit that he could so far 
 mistake the import of the treaty, as to suppose that he had power to 
 submit it, or that he could be so blind to the dictates of reason and 
 common sense, or so ignorant of the motives of state policy which 
 govern European potentates, as not to see that such submission was 
 equivalent to what lawyers call a retraxit. He never could have 
 intended thus to sacrifice at a blow the private interests committed 
 to his charge, and the national honor he so deeply cherished. 
 
 If we are right in this, it will be seen that Louis Napoleon's 
 assumed jurisdiction over the fact was an usurpation of power not 
 granted. Upon this ground alone, his award was wholly void in 
 every legal and moral sense, and should have been rejected by our 
 government immediately after its publication.
 
 SPEECH OF CHARLES o'cOflOE, ESQ. 141 
 
 The tendency to usurpation was pretty strong in the mind of the 
 arbiter at the time, as may be perceived by reference to contem- 
 poraneous events. But in reference to this case, he not only 
 assumed powers not granted, but undertook to overrule, and 
 negative the very facts agreed upon by the high contracting parties, 
 and which, of course, he was expressly forbidden to adjudge. 
 
 In the Second article of the treaty, it is stated in so many words, 
 that the General Armstrong was " destroyed by British vessels in 
 the waters of the island of Fayal." (Article 2.) Yet, the award, 
 in reciting this part of the submission, studiously omits the words 
 "by British vessels ;" and, in its finding upon the facts, it states, that 
 the act of destruction was by Captain Reid in consequence of the 
 hostile demonstration made. Even if it was within his judicial 
 province to set aside a fact agreed by the parties, he could not 
 justify this finding. The proofs are clear that Captain Reid merely 
 fired a shot through the vessel's bottom, in order to sink her in the 
 harbor, thus placing her for the time beyond the enemy's reach, and 
 reserving the chance of raising her at a future period. But the 
 British, being thus baulked in their original design, set fire to her, 
 and thereby effected her complete destruction. 
 
 Thus, it will be seen, that independently of the deeper moral 
 objections to it, Louis Napoleon's award was not entitled to any 
 respect whatever, and was wholly void, because he based it upon 
 a question of fact not submitted to him. It may be well, therefore, 
 to state here the legal grounds on which we insist that its accep* 
 tance wrought an extinguishment of our claim against Portugal, 
 and gave rise to a claim in its place against the Treasury of the 
 United States. We had, originally, a just claim for indemnity 
 upon Portugal, which, under the circumstances, it was the impera- 
 tive duty of our government to enforce ; and which, as against us, 
 the government had no right to surrender or annul. The power of 
 prosecuting that claim was vested in the government alone, and 
 consequently, the award of Louis Napoleon thereon whether just 
 and lawful or not on being accepted by the Department to which
 
 14:2 BRIG GENERAL ARMSTRONG* 
 
 is intrusted our Foreign Affairs, worked a complete extinguishment 
 of the claim as against Portugal. (See Secretary Marey's letter, 
 dated Dec. 10th, 1854.) That acceptance deprived us of all 
 recourse except upon the public treasury. We claim that the 
 award of Louis Napoleon was partial and unjust ; we have shown 
 that it was void, for want of jurisdiction, because not warranted 
 by the submission, and that it was void as against us, because 
 important evidence was withheld from him, and because the right 
 to be heard ia support of our claim before himself or his council, 
 was denied to us. 
 
 The withholding of evidence, the denial of a hearing, and the 
 unwarrantable acceptance of the award, are relied upon as involv- 
 ing a liability of the government because they are not acts of a 
 subordinate official, who might be personally responsible at law to 
 the citizen for the injury produced by his malversation, but are acts 
 of State, performed by the supreme executive in the exercise of a 
 high discretionary authority which no court could control 
 or correct, at the suit of an individual. Hence the liability of the 
 nation. 
 
 An opinion of Mr. Attorney-General Gushing has been cited, 
 showing that the government is not responsible for the acts of 
 marshals, collectors, pilots, and other subordinate officers who are 
 appointed to facilitate the business operations of the citizen. We 
 acquiesce unhesitatingly in this opinion. But it has no application 
 to the President, the heads of departments, or other high public 
 functionaries, who are themselves the government. These officers 
 are intrusted with the power of representing the nation and acting 
 for it. They cannot be arraigned in a court of law, or elsewhere 
 made responsible to the private citizen who may be injured by acts 
 of state, performed through their agency? For these the nation 
 itself must answer, in its collective and sovereign capacity. Indeed 
 the Departments constantly recognize this rule. Collectors of the 
 customs are in the daily habit of seizing goods, and performing 
 other acts of direct interference with the property of individuals in
 
 SPEECH OF CHARLES o'cONOR) ESQ. 143 
 
 conformity with instructions from the Treasury founded upon a 
 construction of the law which is subsequently condemned by the 
 courts as erroneous ; and, as a necessary result, they are frequently 
 made liable for damages and expenses. On all such occasions, 
 it is the established practice to indemnify the subordinate out of 
 the public treasury. Though selected with especial reference to 
 their fitness for high station, the heads of departments are mortal, 
 and must sometimes err through haste, inadvertence or miscon- 
 ception. When such errors occur, there being no other remedy, it 
 is altogether just that the government should make the reparation. 
 Though the act directed to be done is unlawful, though the 
 direction itself is, of course, a violation of law, still it is impossible 
 to conduct public affairs, at all times, with absolute accuracy, and 
 there must be, somewhere, a discretionary power, to act for the 
 public upon emergencies, and in doubtful cases. When that 
 discretion is rightly exercised, the nation takes the benefit ; when 
 erroneously exercised, it should sustain the resulting loss. 
 
 These same principles apply here. Our claim is against the 
 public treasury because the injury complained of resulted from 
 acts of the government itself, performed through its highest function- 
 aries, in the exercise of an irresponsible discretion. The maxim 
 respondeat superior, is eminently applicable to such cases. For acts 
 of state, the State itself must answer. The government of the 
 United States did not protest against the award of Louis Napo- 
 leon, but, on the contrary, expressly declared its acquiescence 
 through the department of State, and thus released Portugal from 
 all further responsibility. Had the award been rejected, we should 
 now stand in the same attitude which we had occupied for forty 
 years. We would still hold a valid and subsisting claim against 
 Portugal, neither abandoned nor released by our government, 
 and still in due course of prosecution by the proper authority. 
 Although, in such a condition of things, we might well murmur at 
 the delay, perhaps mere delay, even amounting to neglect, would 
 not entitle us to maintain here or elsewhere, a pecuniary demand 
 against the United States.
 
 144 BRIG GENERAL ARMSTRONG. 
 
 The right to reject the award of a mutual friend has been exer- 
 cised by our government, and is fully recognized in the law of 
 nations. Yattel says, that where there is flagrant partiality, or 
 where the arbitrator exceeds his power by determining a matter 
 not submitted to him, it will not bind. " If by a sentence mani- 
 festly unjust, and contrary to reason, the arbitrator has stripped 
 himself of his quality, his judgment deserves no attention." Book 
 11, ch. 18, 2391 In the same section, that writer illustrates his 
 views by very opposite instances. He says, " in case of a vague 
 and unlimited submission in which the parties have neither precisely 
 determined what constitutes the subject of the quarrel, nor 
 marked out the limits of their opposite pretensions, it may often 
 happen that the arbitrator may exceed his power and pass judg- 
 ment on what has not really been submitted for his decision." In 
 this case the submission was framed without the requisite precision 
 as to the point submitted, or Louis Napoleon, without that 
 apology, transcended the authority granted. In either case, the 
 award should have been rejected. 
 
 We will now consider the evidence with a view to the question, 
 whether Captain Reid was the aggressor. 
 
 James' Naval History of Great Britain, vol. 6, p. 349 ; states 
 that " Captain Lloyd sent Lieutenant Robert Faussett, in the Plan- 
 tagenet's pinnace, into the port, to ascertain the force of the schoo- 
 ner (the Armstrong,) and to what nation she belonged. Owing 
 to the strength of the tide, and the circumstance of the schooner 
 getting under weigh, and dropping fast astern, the boat drifted 
 nearer to her than had been intended. The American privateer 
 hailed and desired the boat to keep off, but this was impracticable, 
 owing to the quantity of stern-way on the schooner. The 
 General Armstrong, then opened her fire, before the boat could get 
 out of gun-shot, killed two and wounded seven of her men. As 
 the captain of the American privateer had now broken the neu- 
 trality, Captain Lloyd determined to send in and cut out his 
 schooner, &c." 
 
 This though not rightfully before Louis Napoleon, if before him
 
 SPEECH OF CHARLES o'cONOK, ESQ. 145 
 
 at all, may be regarded as the British version. The historical con- 
 flict between us and that nation, may be seen by reference to Inger- 
 soll's history of the second war vol. 1, pp. 44, 45. 
 
 The proof before Louis Napoleon, and now before the court, is 
 found in the affidavit of Faussett, on the British side, and that of 
 Captain Reid, and his officers, on the American side. 
 
 Lieutenant Faussett's affidavit tells substantially the same story 
 as that contained in James' work. He says he went to inquire 
 "what armed vessel" it was. He swears that his men were with- 
 out arms, and that he was in the act of backing his boat astern 
 with a boat-hook, when he was fired into. 
 
 Captain Reid in his protest, verified by himself and nine of 
 his officers, at Fayal, September 27, 1814, swears that the first 
 approach to his vessel was made by "four boats filled with armed 
 men, that he repeatedly hailed them and warned them to keep off, 
 which they disregarding, he ordered his men to fire on them, which 
 was done, killing and wounding several men." He further says, 
 "The boats returned the fire, killing one man and wounding the 
 first lieutenant. They then fled to their ships and prepared for a 
 second and more formidable attack." 
 
 This is the direct evidence of the immediate actors in the 
 drama. 
 
 The absurdity of the English story is very striking. In the 
 first place where was the necessity what was the right of the 
 British, then in a state of war, to approach an armed cruiser in a 
 neutral port, for the purpose of a search as to her nation or her 
 force ? If necessary, could not the first of these particulars have 
 been ascertained with great ease from any officer of the port ? No 
 man will contend for the right to make the latter search, and though 
 stated in James' Naval History, the court will perceive that the 
 vague terms employed in Faussett's affidavit, leave it doubtful whe- 
 ther he intends to avow any such design. 
 
 The testimony of Captain Reid and his gallant associates, con- 
 flicts with Faussett's in every point. First, they say the approach 
 
 11
 
 146 BRIG GENEEAL ARMSTRONG. 
 
 was made with four boats instead of one. In the next place, they 
 contradict most explicitly the- pretence that the British were 
 unarmed, by proving a return fire effecting the death of one 
 man, and wounding their first lieutenant. About this latter fact, 
 there could be no mistake, and here the collision of testimony is so 
 express, that no decision could possibly be made against the Ameri- 
 can party, except by convicting them of willful and deliberate per- 
 jury, or applying the cold philosophy to which we have before 
 adverted, that is to say, deeming a fact not proven whenever the 
 affirming and denying witnesses have equal means of knowledge. 
 And, indeed, it will be observed that Louis Napoleon must have gone 
 upon this latter doctrine ; for his finding in the award, is simply 
 this " it is not certain that the men who manned the boats afore- 
 said, were provided with arms and ammunition." 
 
 Many circumstances tend to discredit this English story. Not 
 only the ministry of Portugal, but all Fayal at the time, pro- 
 nounced the English the assailants. The affidavit of Faussett did 
 not see the light for many years subsequently to the occurrence. In 
 this encounter, the Armstrong lost one killed and one wounded, 
 whilst in her final conflict with twelve or fourteen boats full of 
 armed men, in which such terrible havoc occurred amongst the enemy, 
 she lost only one additional man killed, and six more wounded. 
 
 Faussett was obliged, of course, to deny that he approached the 
 first time with more than one boat. Four boat loads of men would 
 be rather a large body to detail on such a service as merely to ask 
 a question; nor was it probable that a British fleet would send out 
 so large a body of men without any arms whatever, to overhaul an 
 unknown armed vessel. He was conscious, also, that the General 
 Armstrong had been fired into with results destructive and fatal. 
 This was witnessed by thousands, and could not be denied; but 
 perverse ingenuity could invent a fable to account for it : so he 
 appended to his narrative the apparently irrelevant circumstance 
 that "Several Portuguese boats, at the time of said unprecedented 
 attack, were going ashore, which, it seems, were said to be armed."
 
 SPEECH OF CHARLES o'cONOK, ESQ. 
 
 To be sure, nothing could be less plausible than the conjecture 
 rather hinted at than hazarded that these Portuguese boatmen 
 fired into the Armstrong. With that halting indirection which 
 marks his whole narrative, Faussett merely gives this on dit, with- 
 out venturing to assert, even upon report or hearsay, that there was 
 any firing by the Portuguese. He left it to the venal apologist 
 and the partial umpire to deem it "not certain" whether the fire 
 came from the British or the Portuguese. 
 
 Surely it is not necessary to dwell further upon this comparison. 
 Paussett is manifestly unworthy of credit, and it appears by the 
 award itself, that Louis Napoleon did not believe him.' 
 
 The primary fact in dispute was this : Did Faussett approach 
 the Armstrong peacefully and unarmed, in a single small boat, to 
 ask a question, or did he approach with several large boats, thereby 
 displaying and employing such a force as to justify apprehensions of 
 a hostile attack ? Louis Napoleon concedes it to be " dear," that 
 this first approach to the General Armstrong was by "some Eng- 
 lish long boats, commanded by Lieutenant Robert Faussett of the 
 British Navy." Disbelieving him as to the main and primary fact, 
 what honest court, sitting to determine this case between man and 
 man, could have found, upon his evidence, that his crews were not 
 armed, in opposition to the imimpeachcd oath of Captain Reid and 
 his officers, confirmed by the voice of all indifferent spectators ? 
 The whole story is a palpable falsehood. The case is eminently one 
 for the application of the rule falsus in uno falsus in omnibus. Any 
 impartial and competent arbitrator would have applied it. 
 
 Nothing but Louis Napoleon's total incapacity to sit in judgment 
 on the case, in consequence of his political relations with Great 
 Britain the party most deeply implicated ia the transaction can 
 account for the award. 
 
 Upon reason and authority, the claim against Portugal appears 
 to have been well founded in fact, and valid in law. We had, by 
 the law of nations and the principles of justice, an absolute right to 
 full indemnity from that country. It has been sacrificed, and the 
 remaining question is this : Are we remediless ?
 
 148 BBIG GENERAL ARMSTRONG. 
 
 Whilst we deny the authority or force of this award, and qaes- 
 tion the whole course of the government in respect to the reference, 
 we wish to be understood as standing not in the least behind the 
 learned solicitor in our admiration for the character of Daniel 
 Webster. That great man had been just called into the State 
 Department, upon the sudden and wholly unexpected advent of a new 
 administration. General Taylor's warlike spirit, as it was sup- 
 posed, bad brought the country to the verge of a war with Portu- 
 gal. The civilian who succeeded him preferred peace, and of 
 course his judgment controlled. Acting in harmony with the 
 policy of the new executive, and perhaps without having given to 
 the subject that careful examination which it required, Mr. Webster 
 assented to the reference for the sake of peace. In this way, the 
 rights of the claimants were sacrificed for what was deemed the 
 public weal. 
 
 But it is contended that the United States, in prosecuting these 
 claims against foreign powers, acts only as agent for the individuals 
 aggrieved, and that, as principals, we have ratified the act of sub- 
 mission to Louis Napoleon. 
 
 We have already denied, in toto, the applicability of this doc- 
 trine. There can be no implied ratification, because the case is not 
 one of principal and agent. The nation has the whole power : it is 
 the principal, not the agent. In defending the rights of the citizen, 
 it is no more an agent than a father is in avenging an insult offered to 
 his child. It acts in vindication of its own honor and sovereignty. 
 But we need not have denied the doetrine, for there is no evidence 
 of ratification. 
 
 On the first rumor that an arbitrament was in contemplation, Mr. 
 gam. C. Keid, Junior, the counsel for the claimants, addressed to the 
 Secretary of State a letter inquiring of its truth, and praying to be 
 heard on the subject before any such action should be had. The gal- 
 lant old sailor himself who had never known fear of personal danger, 
 shrank with a wisely instinctive horror from the bare thought of 
 submitting his own and his country's honor to the arbitrament of an 
 European despot. The keenness with which he felt upon this sub-
 
 [SPEECH OF CHABLE8 'CONOR, ESQ. 149 
 
 ject is but thinly veiled by the modest courtesy of his respectful 
 remonstrance. Let it be read : it deserves a place in the annals of 
 his country. Let the personal characteristics of the hero, as 
 exhibited in peaceful action, adorn the same page which bears to 
 future times his illustrious deeds. They will alike challenge admi- 
 ration and reflect honor upon all who may be so happy as to 
 S imitate. 
 Nxw YORK, August 26, 1860. 
 HON. DANISL WEBSTER, 
 
 SIR: By the recent daily journals, rumors are rife that the claims of 
 the General Armstrong, are about to be referred to some power for arbitra- 
 tion. This mode at best being considered somewhat problematical, we, the 
 claimants, would respectfully suggest, whether or not a settlement by treaty or 
 ^ convention may not in your opinion be preferable, as being most likely to 
 enable us to obtain our demands without the risk of a failure ? 
 
 Feeling as we do, that we are in very safe and very able hands, we have 
 no great fears for the future, if we be allowed to compare what you have 
 already done for us, with what is to be expected on future occasions. 
 
 After so much negotiation, controversy, and anxiety, for a long scrie* 
 of years, we now look to you, sir, with every confidence for a final and favor- 
 able termination of this affair. And should you be pleased to honor us with 
 your views, we shall esteem ourselves under additional obligations. 
 
 With great respect, &c. 
 
 S. C. RKID, 
 Late Commander of the G. A. 
 
 In behalf of the Claimants. 
 
 Before either of these letters reached the department of State, 
 the negotiations had been brought to a close, and consequently our 
 government could not recede. This had been done without notice to 
 the claimants, without either knowledge or assent on their part, 
 and was contrary to their wishes. 
 
 As it was too late to prevent the arbitrament, the claimants did 
 all that remained in their power. They solicited permission, first 
 that young Mr. Reid, their counsel, might proceed to Prance, 
 with competent authority to obtain a due advocacy of the case.
 
 150 BRIO GENERAL AKMSTKONG. 
 
 This was not granted. They next had prepared a written argu- 
 ment, and prayed that it might be laid before the arbiter. This 
 request was also denied. * It seems to have been understood that it 
 was beneath the dignity of a monarch, to hear the party. As an 
 act of State, this refusal may have beeen according to established 
 forms, but, if it was, how manifest becomes our position that the case 
 never should have been referred. Royal grants usually run Ex 
 cerla scientia et mero motu. This royal arbitrament seems to have 
 been in like manner understood by all parties, except the unsub- 
 mitting claimants, as an appeal to absolute, irresponsible monarchical 
 volition ! 
 
 These rejected solicitations for common justice, and these dis- 
 regarded remonstrances, constitute the whole evidence relied upon 
 to prove a ratification. If they have that effect, we ask, in the 
 name of conscience and reason, what could the claimants have done 
 in the premises which would not have been a ratification ? Was it 
 necessary to levy war against the government ? Was it necessary 
 to appear at the State Department and rail at the secretary, 
 like a common scold ? Ought we to have hired penny-a-liners, 
 and filled the journals of the day with invective ? Surely, none 
 of these things will be pretended. We objected to the policy pur- 
 sued. When overruled, and no other resource was left to us, 
 vre resolved, in humble submission to the omnipotence of the 
 State Department, to make the most of a bad position and to devote 
 every means in our power to the attainment of success. 
 
 It may be presumed that our objections to the submission are 
 not relied upon as acts of ratification. Perhaps that point is 
 mainly founded on our prayer to be heard before Louis Napoleon. 
 What else could we have done at that stage of the affair ? Silence 
 would have been deemed assent. Any omission on our part to do 
 and suggest whatever was in our power and which could possibly 
 conduce to success, would have been disrespectful toward our 
 government, and might justly have been condemned. Desperate as 
 the case may have seemed to us, it did not appear so to the
 
 151 
 
 government, and surely we were right in straining every nerve to 
 eecure success. The spirit which animated our gallant tars in the 
 midnight combat at Fayal, secured neither safety nor entire suc- 
 cess ; but it inflicted upon the enemy an irreparable wound. It 
 reflected lustre upon our country. The same wise, gallant, perse- 
 vering, and indomitable spirit, presided over this last effort to sus- 
 tain a righteous cause sinking under the combined influence of 
 artifice in the enemy, partiality in the judge and oversight in the 
 prosecutors. It did not succeed ; but this court will not permit it 
 to prejudice the man who made it. On the contrary, it was on his 
 part a performance of duty. Instead of justifying his con- 
 demnation to perpetual silence as a willing participator in this 
 unwise submission, it is precisely the act which secures him still a 
 standing in court, as a claimant, and entitles him this day to 
 ask a judicial sentence against the unjust arbiter. Judcx damnatur 
 cum nocens absolvitur. 
 
 There is something most irrational in the pretence that this 
 prayer for leave to be heard, although rejected, was a ratification 
 by us of all that had been done. A gladiator cast naked and 
 weaponless into the arena, would instinctively call for a sword as 
 the lion approached, him. According to our learned adversary's 
 notions of justice, this last prayer of the predestined victim, 
 although cruelly denied, would be an approval of his sentence to 
 the unequal conflict. "We dismiss, without further comment, this 
 idlest of all idle pretences. 
 
 It has been urged that Captain Reid ought to have surren- 
 dered ; that he would have suffered no dishonor in yielding without 
 a blow. Suppose it to be so, was there neither merit nor honor in 
 the opposite course ? But we cannot agree with the learned solici- 
 tor in this. An act of Congress passed at the commencement of 
 the war, directed the President to prepare instructions and to cause 
 a copy to be delivered to the captain of every private armed crui- 
 ser. 2 Statutes at large, p. 161, 8. Our copy was lost in the 
 Armstrong ; knowing that a line of conduct very different from 
 tame and unresisting submission, was commanded, we have sought
 
 162 BEIG GENERAL ARMSTRONG. 
 
 for the original among the archives of the department, but without 
 success. The same remorseless enemy who destroyed the copy at 
 Fayal, at abont the same moment, destroyed the original record at 
 this capitol. We cannot therefore, produce it, but we submit that 
 this court should infer the fact. The instructions undoubtedly were 
 to use the utmost exertions to defeat the military and naval forces of 
 the enemy, whenever and wherever encountered. The ninth section 
 of the same act gave a bounty to each person on board, when 
 any privateer burnt, sunk, or destroyed an armed vessel of the 
 enemy of equal force. 
 
 Pensions are also allowed by the acts of Congress to every officer, 
 seaman and marine belonging to a privateer, disabled in any 
 engagement, with the armed vessels of the enemy. Statutes at large, 
 vol. 2, p 799, 2. 
 
 This point ought not to have been urged by the counsel for the 
 government. Indeed the fact that it is here urged with a hope of 
 success, considering the ground of the arbiter's decision against 
 ns, gives great, and we conceive conclusive force to a distinct 
 equity entitling us to compensation from the public treasury. 
 
 The facts and circumstances in proof, show clearly that Captain 
 Lloyd's object was to possess himself of the General Armstrong, 
 for the purpose of employing her against the unprotected villages 
 and hamlets upon our sea-board. 
 
 We have shown that the first approach was by many boats, and 
 that the men in them must have been armed. Louis Napoleon 
 admits the former fact ; indubitable results make manifest the 
 latter. The letter of Consul Graves proves Lloyd's desire to cap- 
 ture the vessel in an uninjured state, and the first approach as 
 proved by Faussett himself, shows a design to carry her by sur- 
 prise. His pinnace, as he calls it, when fired into, was immediately 
 alongside of the Armstrong, so near that he employed a boat-hook 
 to direct her motions. 
 
 These circumstances are, we say, entirely satisfactory proof of 
 the design imputed. 
 
 How great then was the merit of Captain Reid, how deep were
 
 SPEECH OF CHARLES o'CQNOK, ESQ. 153 
 
 our obligations to him and his gallant companions for having 
 defeated it. 
 
 Independently of the right to reimbursement from Portugal, they 
 have a direct claim upon the equity and justice of their country. 
 
 When the boats first approached, symptoms of this design, in the 
 judgment of Captain Reid, were manifest. If Captain Reid had 
 preserved a pusillanimous or selfishly pacific demeanor, submitted 
 to capture, and allowed his vessel to become a weapon of offence 
 against his country, the validity of his claim against Portugal 
 never could have been effectually questioned. But he acted on 
 appearances, defeated the design, crippled a whole British fleet, 
 and conducted his operations in a manner at once so judi- 
 cious and so gallant, that whilst, considering the forces employed, 
 they excel in martial glory and fearful consequences to the enemy, 
 any event of the whole war, every spectator, including even the 
 Portuguese allies of our enemy many of whom were injured in 
 person and property, during the conflict justified them as acts of 
 imperiously necessary self-defence, warranted by the great princi- 
 ples of natural and international law, notwithstanding that they 
 were conducted within a neutral territory. His motive could only 
 have been to defeat this pernicious design, his acts could not have 
 been dictated by rashness and temerity, or by any selfish purpose. 
 All the circumstances repel the imputation of rashness ; selfishness 
 would have counselled submission to the enemy. He acted on a 
 belief which we can now see was amply justified ; he defeated the 
 hostile intent. No mortal can set limits to the benefit which may 
 probably have resulted to these United States, from that defeat. 
 
 Yet the very nature of the case rendered -proof that that intent 
 actually existed extremely difficult. Counter-evidence must of 
 course be very accessible to the unprincipled assailant. The intent 
 itself was fraudulent and dishonorable. Those engaged in it could 
 not be very conscientious. Falsehood, deception and prevarication, 
 are the invariable allies of fraud. In submitting himself to the 
 government of his well-founded opinion on this point, Captain
 
 154 BRIG GENERAL ARMSTRONG. 
 
 Reid performed an act of disinterested devotion to the defence 
 of his country. It was a departure from what the solicitor now 
 calls " the private business speculation in which he was engaged." 
 It was a voluntary act of national defence. By entering upon it, 
 he threw away his certain claim to reimbursement from the Portu- 
 guese government, for it exposed him to that very judicial con- 
 demnation by which the claim has been sacrificed. Upon any 
 proofs which could ever be produced it might be to a partial arbi- 
 trator, nay, to any tribunal quite "uncertain" that the hostile and 
 aggressive intent which he anticipated and repelled, had any exist- 
 ence except in his own imagination. < 
 
 In thus judging and acting, Captain Reid performed a great 
 public benefit He carried on war agaiust the enemy at his own 
 expense, and it was only necsssary to satisfy the constituted author- 
 ities of his country that the act was a proper one to be ratified 
 and adopted, in order to give him a perfect claim in equity for 
 reimbursement of the cost from the public treasury. 
 
 A government at war, always contemplates carrying on hos- 
 tilities at the public cost by the employment of force against 
 the enemy at such points as may seem most likely to prove effectual. 
 And, although it is true that no citizen is authorized to assume the 
 direction of war measures, yet whenever a private individual, 
 with no motive but the public good, voluntarily avails himself of 
 a favorable opportunity, and bears the brunt of a contest which 
 government would gladly have assumed, could it have foreseen the 
 occasion, we conceive that there arises in his favor an equitable 
 claim to reimbursement. 
 
 The principles of enlarged equity and good conscience illustrated 
 by the voluntary service in rescuing the stack of wheat from 
 impending peril mentioned in 20th Johnson's Reports, apply to 
 such cases, and require the government to indemnify the patriotic 
 actors.* 
 
 * The point of law here contended for was affirmed by the Commissioners of Claims under 
 the late convention with Great Britain, in re The Hudson's Bay Company. President's Mes- 
 age of Aug. 11, 1S56, p. 165. See also opinion of Denio, Ch. J. 8 Kernan's N. Y. Reports, 149.
 
 SPEECH OF CHAKLE8 o'cONOB, ESQ. 155 
 
 There is still another distinct head under which our claim should 
 be allowed. . 
 
 It is asserted by the learned solicitor, and cannot be denied, 
 that the government has entire and absolute control over such 
 claims as that which existed in this case against Portugal, and is 
 alone competent to prosecute them. Of course, we admit this pro- 
 position. But whilst we concede the power, we deny that 
 the government has the right deliberately and intentionally to 
 work an inevitable shipwreck, or an express extinction of the 
 private citizens' claim, for its own ease in the administration of 
 public affairs, for the sake of securing the favor, or appeasing the 
 resentment of a foreign power, or for any object or purpose, 
 beneficial only to the public at large, except upon full compensation 
 to the person whose right is thus devoted to the use of the nation. 
 This denial is sustained by the eternal principles of justice. And 
 these principles, so far as they touch this question, do not rest 
 merely upon the authority of reason or even of precedent. They 
 are consecrated as law by the fifth amendment to the Constitution. 
 It provides that " private property shall not be taken for public 
 use without just compensation." No one will pretend that a right 
 to reimbursement for an injury is riot property, or that the 
 extinguishment of all remedy for the enforcement of such a right, 
 is not taking away tha right from him who possessed it. 
 
 This fundamental rule has been violated by the government of 
 the United States, in respect to the claim now before your Honors ; 
 and, we insist, that whenever the heel of power tramples in this 
 way upon the interests of a private citizen, a reference of his claim 
 to this court, vests it with the means, and charges upon it the duty 
 of vindicating the right and exacting justice from the conscience of 
 the Republic. 
 
 Some further general observations relative to the powers and 
 duty of government in prosecuting against foreign powers claims 
 for redress of grievances suffered by its citizens, may here be pro- 
 per.
 
 156 BBIG GENERAL ARMSTRONG. 
 
 
 
 Though its action is representative, and bears a certain analogy 
 to that of an agent, yet, unlike any other agency, its power over the 
 subject is supreme. Whatever the government could do in its 
 legislative capacity it could properly have done in reference to this 
 claim. Undoubtedly, in pursuing demands against foreign states, 
 the government must be the sole judge of the measures to be 
 adopted. It is the judge whether war shall be made, and how 
 long the negotiations shall be permitted to progress before resort 
 shall be had to extreme measures. The interests of particular indi- 
 viduals are not to be preferred to the interests of the whole ; nor 
 are the horrors of war to be rashly invoked. It is also the sole 
 and the competent judge whether the claim actually exists. It 
 has the right to take adequate measures for investigating the facts, 
 and ascertaining not only the existence of the claim, but whether it 
 is of such a nature as to be properly enforceable by governmental 
 agency. This may be done in any tribunal, or by any officer or 
 instrumentality the government may think fit to select. This is 
 manifestly so, because in the nature of things the government can- 
 not otherwise act intelligently. As a consequence, we must con- 
 cede that when the official inquiry thus instituted results adversely 
 to the claim, the suitor is obliged to submit. Even though his 
 claim be just, he must relinquish its prosecution. In such a case 
 he is in no worse plight than the owner of any other righteous 
 demand, who, from want of evidence or other accident, has failed 
 to persuade a court and jury of its justice or legality. 
 
 Even when a claim has been found upon due examination to be 
 just, we concede that the suitor must submit to such delay in the 
 prosecution of it as the exigencies of public affairs may occasion ; 
 nor is there any greater right to complain of delays than belong to 
 suitors in our ordinary courts of justice. Much time is often 
 required to carry these cases through, and consequently mere delay 
 cannot be considered a neglect of duty. 
 
 Questions of more difficulty may arise in respect to the powers 
 of government to compromise a claim which it has pronounced to
 
 SPEECH OP CHARLES o'cONOE, ESQ- 157 
 
 be just. For instance, whether in consideration of some special cir- 
 cumstances government would be authorized, in a class of cases, to 
 accept as in full, a portion of the sum due ? Perhaps there are 
 grounds which might justify the exercise of such a discretion. We 
 do not mean to deny or dispute it, because the inquiry is altogether 
 irrelevant to this case. 
 
 It has been contended that when prosecuting claims against a 
 foreign State, government has a right to discriminate between 
 those equally meritorious, to prosecute some and abandon others. 
 Perhaps this may be so. But there is an universally received 
 notion of justice which forbids such a course. The learned solici' 
 tor, may, if he pleases, pronounce it a vulgar prejudice certainly 
 its condemnation is usually expressed in a somewhat vulgar form 
 of speech. It is called " making fish of one, and flesh of another." 
 Even in matters of gift or courtesy it is disapproved. Equality 
 is approved by the universal sense of mankind in the distribution 
 of alms, the bestowal of complimentary gifts, and the tender of 
 courtesy, as well as in the administration of justice. When a 
 parent's testament discriminates between his children, it often leaves 
 a "plague-spot" upon the testator's memory, and lights the bale- 
 fill fires of hatred amongst his posterity. How far a simple dis* 
 crimination between claims of precisely equal merit might be corn* 
 petent, need not be determined. No such case is before the court 
 This claim was never thus simply discriminated against and aban- 
 doned. We will consider hereafter what may be the just result 
 of that which did take place, that is to say, an abandonment of it 
 by the government for a valuable consideration received by the 
 public. 
 
 The right of the government as prosecutor of claims for the spo- 
 liation of its citizens, to discriminate, to a certain extent, between 
 classes of claims, might safely be conceded, and perhaps could not 
 be denied. For instance, in negotiating with a 'foreign state, all 
 claims existing prior to a certain date, or to some public event, might 
 perhaps, be deferred ; all claims constituting a class, and, as such,
 
 158 BRIG GENERAL ARMSTRONG. 
 
 falling within certain principles apparently detracting from their merit 
 might perhaps be relinquished. This line of action would not always 
 involve a manifest violation of the rule that, government should afford 
 equal protection, and extend equal benefits to all beneath its sway. 
 In imposing taxes, and other burdens, the legislative power often 
 selects certain classes. Particular trades or occupations hitherto 
 lawful may, by an exercise of legislative discretion, be adjudged to 
 be prejudicial to the public interest, and henceforth prohibited, or 
 restrained within new and more confined limits. The legislative 
 power decrees that only males between certain ages shall be sent 
 to bare their bosoms to the enemy, and ward off his assaults, thus 
 exempting all others from military duty. Inequalities in admi- 
 nistration like these which go upon some reason, wisely or not, 
 assumed to be just, have not the impress of unfairness and favorit- 
 ism. We need not in this case deny their lawfulness. But whilst 
 we concede to the government, in its legislative action, and in its 
 executive administration, this right of discriminating between large 
 classes of cases or persons, in the imposition of burthens and the 
 granting or withholding of privileges, we deny its right to single 
 out for sacrifice, a single individual, or one particular claim. 
 Such an act is repugnant to the general sense of mankind ; and, 
 if it be designed for the public interest, is forbidden by the 
 Constitution, unless upon full compensation made from the public 
 treasury. 
 
 In the first place the government investigated the merits of this 
 claim, and determined that it was valid. It was in the power of the 
 government on obtaining new lights to have revoked this decision, 
 but it never has done so. It never can do so, the facts forbid it. 
 Asparens patriot, it assumed the duty of enforcing against Portugal, 
 this claim, together with several others of equal, but not of greater 
 validity. Negotiations were commenced accordingly, and after 
 many years they reached a conclusion. The ultimatum of Portugal 
 was, that although she denied the justice of all the claims, yet, 
 for the sake of peace, she would recede from her opposition to all
 
 SPEECH OF CHAKLES o'CQNOK, ESQ. 159 
 
 the others, and would pay them in full, provided our government 
 would refer this one to arbitration. Whether she could be driven 
 from this position by any thing less than actual compulsion, was to 
 some extent tested by General Taylor's administration. The 
 United States could not separate the several parts of the offer ; 
 they were obliged to accept it or reject it in toto. 2 Sandford's 
 Chancery Reports, 244. Mr. Clay, our minister, by authority 
 of his government, rejected it, demanded his passports, and sailed 
 from the Tagus. 
 
 At this critical moment in the history of our claim, the heroic 
 head of our government was summoned from mortal to immortal life. 
 His more cool successor, armed with a higher degree of prudence, 
 shrunk from the responsibilities of a war with that nation which 
 had been pleading her own weakness and incapacity for half a cen- 
 tury. He at once relinquished the high ground taken by his pre- 
 decessor, and accepted the offer of Portugal. 
 
 The treaty thereupon made, singled out the case of the General 
 Armstrong, for umpirage, and the other claims were paid accord- 
 ingly. 
 
 We do not deny that our government might fairly have submit- 
 ted any mere question of law involved in the case even to a third 
 power, since on that part of the case error seems to have been 
 impossible. Perhaps we could not complain of an investigation of 
 the facts by a jury or by any responsible and 1 impartial individuals. 
 But inasmuch as, from the outset, it was plainly manifest to the 
 commonest understanding, that a reference of the claim, as a 
 question of fact, or as a mixed question of law and fact, to any 
 potentate of Europe, necessarily involved its rejection, we insist 
 that this treaty, taken in connection with the subsequent unwar- 
 rantable acquiescence of our government in Louis Napoleon's 
 award, was a sacrifice of the claim for the sake of accomplishing ends 
 deemed to be important to the public, that is to say, the recovery 
 of other claims, and the restoration of amity with Portugal. If we 
 are mistaken in the views which have been expressed to the con-
 
 160 BBIQ GENERAL ABMSTBONG. 
 
 trary, and the treaty did, indeed, contemplate a submission of the 
 facts, our point is only made the more brief and direct. Then the 
 treaty itself was a substantial surrender of our claim. All that 
 followed was "leather or prunella," the mere ceremonial of the 
 release. Louis Napoleon was the scrivener, chosen by the high 
 contracting parties, to select the phrase and apply the forms 
 required for a solemn authentication of their preconceived design. 
 We do not mean that, in a common and vulgar sense, our govern- 
 ment designed this relinquishment, but it is sound law and con- 
 formable to reason, that parties are always held to intend the 
 necessary result of their acts. Portugal saw that arbitration and 
 release were practical synonyms ; the claimants saw it and remon- 
 strated against the measure ; our government ought to have seen 
 it, was bound to have seen it, and must therefore be adjudged to 
 have seen it. 
 
 Thus we establish our point that this claim being private pro- 
 perty, was devoted to destruction for purposes of State, which fact, 
 by the Constitution and by the elementary principles of general 
 justice, entitles the owners to compensation from the public trea- 
 sury. , 
 
 The great antiquity of this claim has been urged against it. That 
 is certainly not the fault of the claimants. They presented it in 
 their protest on the very day the Q-eneral Armstrong was destroyed ; 
 they have patiently but respectfully pressed it by every means in 
 their power from that day to the present. If it has been neglected 
 by the government which alone had the means of enforcing it, that 
 fact, so far from being an objection to the claim as now presented 
 to this court, is the very basis on which it rests. 
 
 The learned solicitor, however, thinks he has produced some 
 thing in the shape of authority against us. He says the claim has 
 been thrice rejected. He has not pointed to the evidence of .these 
 rejections, nor to that place in the history of the case where we 
 may find them recorded ; consequently we are left to conjecture 
 what are the acts which he calls rejections and we can only invite
 
 SPEECH OF CHAKLES o'cONOE, ESQ. 161 
 
 attention to the circumstances upon which he may be supposed to 
 rely. 
 
 The first of these rejections took place in 1817. It is found in 
 the report of a Senate committee upon the memorial of the owners 
 of the General Armstrong. Perhaps that report was right in say- 
 ing that the owners were not, at that time, or, upon the grounds 
 set forth by by them, entitled to payment from the public treasury. 
 But that very report declared "that indemnity from Portugal 
 ought to be insisted on as an affair of State." This is rejection the 
 first ! Is it not an express recognition of all that we now assert ? 
 
 In 1846 the claim was again presented to Congress, in conse- 
 quence of its not having been followed up against Portugal by Mr. 
 Upshur, or perhaps, as has been suggested, by Mr. Upshur's clerk, 
 and in consequence of its having been treated in like manner by 
 Mr. Calhoun, who, it is said, acted through the very same irrespon- 
 sible agency. It was then referred to the committee of the Senate 
 on foreign affairs, who, in their report, after reviewing the circum- 
 stances of the case, advised a polite reference of the case to the 
 State Department to be proceeded with against Portugal, according 
 to the recommendations of the report made in 1811. This report 
 was adopted by the Senate. For some undiscoverable reason, 
 however, the department failed to act until 1849, when Mr. Secre- 
 tary Clayton took the matter up, and prosecuted it with vigor, and 
 to the very verge, it has been said, of a war with Portugal. This 
 is rejection the second ! 
 
 We now proceed to the third rejection. After the delivery of 
 of Louis Napoleon's award, two distinct petitions were presented, 
 one to each house of Congress for the allowance of the claim in its 
 present form. And what were the results ? In the House of 
 Representatives, a report of the most favorable kind was made. 
 " It says that a stronger case for relief in equity could scarcely have 
 been presented." The House not having sufficient time to take up 
 the claim, referred it to this court. Surely that was not a rejection ! 
 
 In the Senate an equally favorable report was unanimously pre- 
 12
 
 162 BRIG GENERAL ARMSTRONG. 
 
 Bented by the Committee on Foreign Affairs. That committee was 
 composed of men not unknown to fame, most of whom have borne 
 a conspicuous part in the legislation of the country, and all of whom 
 may be supposed to have understood pretty well the principles of 
 justice and also what was due to the honor of their country. 
 
 A bill was accordingly brought into the Senate for the relief of 
 the claimants. The fate of that bill is the only thing bearing any 
 resemblance to a rejection which has ever occured in the history of 
 this claim ; and, therefore, it may be proper to state somewhat in 
 detail the action of the Senate. It is appealed to as evidence 
 against the justice of our claim, and therefore, it is certainly proper 
 to scrutinize it somewhat carefully, in order to ascertain whether it 
 amounts to a rejection. The bill was presented and, without much 
 examination, was lost by a vote of 12 to 21 ; a reconsideration 
 took place, and by a vote of 22 to 17 it was ordered to its third 
 reading. This is generally regarded as a test vote ; but scruples 
 were indulged in, another reconsideration took place, and finally at 
 the close of the session, after a very animated debate a full report 
 of which is presented to your Honors the bill was laid upon the 
 table by a single vote. This is not a rejection, it is something 
 like the put-off of a polite, but evasive debtor, " Call again 
 to-morrow." The whole technical force of such a vote is to post- 
 pone the consideration of a measure for the session. Its moral 
 weight, in this instance, deserves a passing notice. It was 25 to 24, 
 consequently this lean majority one single legislator constitutes 
 the whole length, the whole breadth, and the whole strength of the 
 three alleged rejections. 
 
 The claim was once allowed by a strong vote, and the utmost 
 that can be alleged against it is, that it was once indefinitely post- 
 poned by a majority consisting of one single vote. It is true, the 
 claimants have been delayed and postponed ; they have been 
 turned over to Portugal for redress, and sent muzzled and fettered 
 to the footstool of Louis Napoleon for justice ; but their merit 
 has never been denied. Every congressional report upon the sub-
 
 SPEECH Off C3ABLE8 o'cONOE, ESQ. 163 
 
 ject, and they amount to four in number, covering a period of nearly 
 forty years, is in their favor. 
 
 Captain Reid has been reproached with sordid motives in 
 mingling with the glorious history of his achievement the accep- 
 tance of a pecuniary recompense. Is it dishonorable in the 
 war-worn veteran, to accept from the overflowing treasury of 
 his happy and prosperous country, the means of subsistence in 
 his old age, and of decent sepulture when his hour of part- 
 ing shall arrive ? Surely not. The learned solicitor accompanied 
 his lecture on this head, with a reference to the example of 
 him whose deeds and memory are deemed the best illustrations 
 of all that is heroic in patriotism, and exalted in honor and moral 
 rectitude. Though Captain Reid presumes not to challenge a com- 
 parison, we must say that this allusion of the learned solicitor was 
 most unfortunate. Though there be no comparison, neither is there 
 in this particular, any contrast. Though Washington never 
 descended to the grade of a hireling, and persisted to the last in 
 refusing compensation, though he did not even accept reimburse- 
 ment of his personal expenses from our impoverished treasury 
 during the conflict ; yet it is one of the recorded proofs of his 
 practical wisdom, of his freedom from mere sentimentality, and of 
 his precision and exactitude in the details of duty, that when his 
 country had achieved her independence, and was able and willing to 
 do justice, he rendered in his own hand -writing, a minute statement 
 of his expenses in the public service, and received from Congress 
 a full pecuniary indemnity. This parallel, which but for the learned 
 solicitor's introduction of it, we would not have ventured to exhibit, 
 refutes another of his arguments. He says that all claims allowed 
 by government ought to be founded in some prescribed rule of law. 
 Washington declined that very payment for his time and services 
 which the law allowed, and accepted the indemnity which no known 
 law directly sanctioned ; but which, being due on principles of 
 natural justice, was conceded by the enlightened equity of Congress 
 and the gratitude of his country. 
 
 Captain Reid asks no gratuity ; he asks neither pay nor reward
 
 1(M BRIG GENERAL ARMSTRONG. 
 
 for his personal toil, sufferings or achievements. Simple indemnity 
 for the actual pecuniary losses of himself and his brave companions, 
 is all that he seeks for himself or them. 
 
 Here and elsewhere, it has been again and again urged that the 
 allowance of this claim would be bad policy and " a dangerous 
 precedent." 
 
 Faying a just indemnity for such losses, it is said, would lead to 
 numerous claims of the kind. When claims are not founded on 
 meritorious services, they can be rejected. But we cannot see that 
 any mischief will result to our country or its interests from allowing 
 indemnity for the cost of achievements in war, so signal in them- 
 selves and so beneficial in their consequences as that now under 
 review. May such " precedents " never be wanting. They must 
 ever redound to the profit and honor of our country, and can never 
 prove dangerous, except to our enemies. 
 
 It is said, if we repudiate the award of Louis Napoleon, it will 
 disturb our amicable relations with Prance and prevent European 
 potentates from ever acting as umpires for us. France cannot easily 
 make a national quarrel out of our awarding compensation to our 
 gallant tars for doing their duty. And if the effect of your 
 decision should be to deter, for all future time, American statesmen 
 from submitting to the arbitrary determination of an European 
 potentate, without evidence and without argument, questions of 
 fact involving our national honor, so much the better. If it shall 
 also deter European rulers from ever again assuming the decision 
 of such questions, it will render them an important service. He 
 who is by position and circumstances disqualified from exercising an 
 impartial judgment, sins against his best interests and his own 
 honor in assuming the office of judge. 
 
 The award is founded in error. It seeks to falsify American his- 
 tory, to fix a stigma upon our national character, and, at our 
 expense, to rescue our enemy from merited opprobrium. Unless by 
 some competent authority repudiated upon our part, we must be 
 deemed, through all future time, as having subscribed to its truth 
 and our own dishonor. Instead of allowing it to seem thus aqui-
 
 SPEECH OF CHARLES o'cONOB, ESQ. 165 
 
 esced in, this court, as it may do consistently with truth and justice, 
 ought to stamp upon the page of history its indignant repro- 
 bation of both the reference and the award. 
 
 Let it not be said that posterity will prefer to the judgment 
 of this court, the award of the impartial referee. In what degree 
 he was impartial may be gathered from the facts. He assumed 
 powers not granted. He gave credit to the denial of a witness 
 whose positive assertion he discredited and solemnly found to be 
 untrue. At the very time of forming his award he was secretly 
 progressing in negotiations for an alliance with Great Britain, the 
 nation chiefly interested against us in the controversy. The 
 importance of that alliance, and the necessity of securing it, may 
 be judged by the stupendous objects it had in view, and is now 
 struggling to accomplish. Neither will it be overlooked that he 
 was chosen to arbitrate as President of the Republic of France, 
 and that, when preparing the award, he was actively engaged in 
 undermining the foundations of that government which, as chief 
 magistrate, he was pledged to maintain. Though the reference 
 was to a President, the award came from a king. With the hand 
 which signed it, he had just stricken down the liberties of his 
 country ; that hand was yet reeking with the life-blood of a repub- 
 lican constitution. 
 
 No wonder that to gratify a monarchical ally, he readily sacrificed 
 the rights of a republic. 
 
 You have been asked to forbear from scrutinizing too nicely the 
 justice of this award, from considerations of deference to the chief 
 of a sovereign State now in amity with us. We ask you to 
 scrutinize it closely, to judge it fearlessly, and, as becomes an 
 American tribunal, to discard considerations of policy when justice 
 and national renown are involved. If the arbiter were all that his 
 most obsequious admirers would venture to assert, his merits have 
 been sufficiently acknowledged and amply rewarded. The liberties 
 of one republic have been sacrificed to his ambition, let us not 
 immolate the fame of aaother upon the same unholy altar.
 
 166 BRIG GBNBKAL ABMBTBONG. 
 
 POINTS DECIDED BY THE COURT, 
 
 OF THE RIGHTS AKD OBLIGATIONS OF NEUTRALS. 
 
 Airr violation of the neutrality of a port, by either of two belligerents, is ft 
 breach of the law of nations. 
 
 The property of belligerents when within neutral jurisdiction is inviolable. 
 
 It is not lawful to make neutral territory the scene of hostility, or to attack an 
 enemy while within it ; and if the enemy be attacked, or any capture made 
 under neutral protection, the neutral is bound to redress the injury and 
 effect restitution. 
 
 Where a party attacked, merely exercises the right of self-defence, it cannot 
 be a cause of complaint ; the breach rests with the party violating the rights 
 of the neutral by attacking the other. 
 
 The act of sending out boats to effect a capture, is in itself a direct act of 
 hostility, in violation of the law of nations. No measure is to be taken that 
 will lead to immediate violence. 
 
 Where an enemy's vessel is approached by the boats of a belligerent, in a 
 neutral port, with an evident hostile intention, the right of self-defence, and 
 law, and reason, justify the enemy in firing upon the boats, which had been 
 hailed and warned to keep off. TJhe fact that the enemy fired the first shot, 
 does not constitute' them the aggressors. 
 
 Where a neutral power permits an enemy's vessel to be attacked and destroyed, 
 while under neutral protection, the neutral is bound to make pecuniary com- 
 pensation for the damages sustained by the injured party 
 
 Where the Governor of a neutral Territory remonstrated against the hostile 
 aggressions being committed upon an enemy's property, but did not use all 
 the means in hia power to protect it, the neutral will not be released from 
 liability. 
 
 The weakness of a nation, or the want of ability to protect her neutrality 
 will not relieve her from the obligation to make compensation for property 
 destroyed in the neutral territory. 
 
 OP ARBITRATION LIABILITY OF THB GOVERNMENT. 
 
 The right of the government to submit a claim upon a foreign nation, involv- 
 ing the interests of its citizens, to arbitration, is not denied, but k must ba 
 done with a due regard to the rights of the citizen.
 
 OF THE EIGHTS AND OBLIGATIONS OF NEUTRALS. 167 
 
 Where the government submits such a case to arbitration, in which the rights 
 of the citizen are disregarded and sacrificed, the government is bound in 
 justice to make him restitution. 
 
 To relieve the government from liability to its citizen on this account, it must 
 appear that the case was one proper to be submitted ; that he had an oppor- 
 tunity of being heard before the arbitrator by argument and proofs ; that 
 the award was certain, definite, and within the submission ; and that the 
 arbitration did not exceed his' powers. 
 
 Where the government has universally acknowledged a claim of its citizens 
 against a foreign nation, upon overwhelming evidence, and had always 
 asserted that the foreign nation was bound to redress the injury ; when 
 It had resorted to argument, and finally, asserted its fixed determination 
 that the foreign nation must redress its citizens, it has no right to hazard 
 the claim by afterwards submitting it to the arbitration of a third power. 
 Such a case is not proper for submission. 
 
 Where a case is thus submitted, without the assent of the claimants, and 
 against their wishes, the government assumes the responsibility, and becomea 
 liable to the claimants. 
 
 Where the government by a treaty with a foreign nation, agrees to accept the 
 payment of certain claims, pro bono pacis, with the condition that a certain 
 special claim of its citizens shall be arbitrated, it is not released from 
 responsibility to its own citizens, in case the award is unfavorable. 
 
 Where the government submits $, claim of a citizen to arbitration without his 
 assent, it should provide that he shall be fully and fairly heard, and have all 
 reasonable opportunity to lay before the arbitrator the evidence on which ho 
 relies. 
 
 Where the government refused to sanction in any manner the presentment of 
 a case by the claimants to the arbitrator, under the construction of a treaty, 
 it will be in violation of the plainest principles of justice, and for such a 
 wrong at the hands of the government, reparation should be made. 
 
 OF THE AWARD AND ITS VALIDITY. 
 
 An award made without the party having had an opportunity to be heard, 
 rests neither upon law nor justice. Every party should have an opportunity 
 to be heard before the tribunal that is to pass judgment on his rights. 
 
 Where, by the terms of a treaty, the matter submitted was a question of law, 
 and the award of the arbitrator was solely founded upon the facts held, 
 that the award is void, because it does not settle the matter in dispute, and
 
 168 BKIG GENERAL ARM6TBOKG. 
 
 the matter submitted; because it does settle the question of fact, which was 
 not submitted, and therefore exceeds the submission. 
 
 Where an award is binding against the government, which by its own acts had 
 disregarded and sacrificed the just rights of its citizens, it is bound to make 
 compensation for the neglect of its duty in not affording them protection. 
 
 March 11th, 1866. 
 CHIEF JUSTICE GILCHRIST delivered the opinion of the Court. 
 
 This case has been pending before the people and govern- 
 ment of the "United States, in various forms, for more than forty- 
 one years. It has never, until recently, been in a situation to be 
 thoroughly argued and investigated as a question of law and of fact ; 
 although, from the peculiar circumstances attending it, and from 
 the discussions in Congress, it has commanded the attention and 
 excited the interest of the public. We are now to consider it, how- 
 ever, in its relation to individual rights and national liabilities, and 
 in this point of view it requires a careful consideration. 
 
 The case is an interesting one in a national point of view, not 
 only because it relates to the duties of neutral nations towards 
 belligerents, but because it raises the question, how far a belliger- 
 ent power is liable to its citizens for losses they have sustained 
 through the neglect of their government to insist that the neutral 
 nation shall perform its obligations. It is also interesting as a 
 brilliant illustration of the gallantry and self-devotion of our coun- 
 trymen. 
 
 The leading facts in the case . have been notorious to the Ameri- 
 can people for more than forty years. On the twenty-sixth day of 
 September, 1814, the American private armed brig General Arm- 
 strong cast anchor in the port of Fayal, a part of the dominions of 
 the crown of Portugal, to get a supply of fresh water. In the after- 
 noon the British brig Carnation, of 18 guns ; the ship Rota, of 38 
 guns ; and the 14 gun-ship Plantagenet, came into port, and 
 anchored about seven o'clock. In the evening four boats approached 
 the General Armstrong. Captain Reid repeatedly hailed them, and
 
 DECISION OF JUDGE GILCHKIST. 169 
 
 warned them to keep off. They continued to approach, when he 
 fired on them and killed and wounded several men. The boats 
 returned the fire, and killed one man, and wounded the first lieu- 
 tenant. The British then retreated, and about midnight renewed 
 the attack with twelve boats and about four hundred men, which 
 ended in their total defeat with great slaughter, and the partial 
 destruction of their boats. The American brig carried seven guns, 
 and their crew amounted to ninety men. She had two killed, and 
 seven wounded, while the killed and wounded on the part of the 
 British must have been nearly two hundred men. So great was the 
 loss that the Thais and Calypso, two sloops of war, which arrived 
 a few days after, were sent home with the wounded men. The 
 British commander, Captain Lloyd, finding this mode of attack 
 unavailing, with laudable discretion anchored the Carnation close in 
 shore, and cannonaded the brig, when her gallant defenders finding 
 it useless to resist such an overwhelming force, abandoned the vessel, 
 and she was then safely set on fire by the British. 
 
 The kingdom of Portugal was neutral, or professed to be so, in 
 
 the war between the United States and Great Britain, and Fayal 
 
 was a neutral port. Any violation of the neutrality of the port, by 
 
 either of the belligerents, was a breach of the law of nations. The 
 
 property of belligerents when within the neutral jurisdiction is 
 
 inviolable. It is not lawful to make neutral territory the scene of 
 
 hostility, or to attack an enemy while within it ; and if the enemy 
 
 be attacked, or any capture made under neutral protection, the 
 
 neutral is bound to redress the injury and effect restitution. 1 
 
 Kent. Com., 117 ; Vattel, B. 3, ch. 7, 132. In the case of the 
 
 Twee Gebroeders, 3 Rob., 136, Sir William Scott says, that no use 
 
 of a neutral territory for the purposes of war is to be permitted. 
 
 " Such an act as this," he says, " that a ship should station herself 
 
 on neutral territory, and send out her boats on hostile enterprises, 
 
 is an act of hostility much too immediate to be permitted.' 
 
 That there was a violation of the neutrality of the port of Fayal 
 by the one party or the other is indisputable. If the party attacked
 
 170 BRIG GENERAL ARMSTRONG. 
 
 merely exercised the right of self-defence, that cannot be a cause of 
 complaint. It is a question of fact, to be determined upon an 
 examination of the evidence, which party violated the rights of the 
 neutral by attacking the other. Did the American brig, with her 
 seven guns and ninety men, commit the folly of attacking the boats 
 of the British squadron, reinforced as their crews might almost 
 instantly have been by many hundreds of men, or did the British 
 commander, seeing the brig lying, as he imagined, helpless 
 within his grasp, determine to attack and carry her at all events ; 
 and did he pursue the course which any officer would have adopted 
 if bis object were to capture an enemy's vessel ? This, of itself, 
 would, according to Sir William Scott, have been a violation of 
 neutrality. " Suppose," he says, " that even if a direct hostile use 
 should be required to,bring it within the prohibition of the law of 
 nations, nobody will say that the very act of sending out boats to 
 effect a capture is not in itself an act directly hostile." Chancellor 
 Kent says, " no measure is to be taken that will lead to immediate 
 violence." 1 Kent Comm., 118. Upon this point the law is clear 
 and indisputable. 
 
 The first question that presents itself is a question of fact, and 
 that is, whether, in this transaction, the British or the Americans 
 were the aggressors. More than forty-one years have elapsed since 
 the affair happened. We are not, however, forced to depend upon 
 the testimony of witnesses given for the first time after so long a 
 period, and for the credit of which, time, and the failure of memory, 
 might properly require us to make some deduction. We have the 
 statements of those who were actors in the transaction, made at the 
 time of its occurrence, and with every opportunity of knowing the truth. 
 It is agreed by the connsel on both sides, that the facts and the law 
 are now both before ns, and the various questions in the case have 
 been argued with a skill and ability that leave nothing to be 
 desired. We shall endeavor to examine the evidence, irrespective 
 of the consideration that the United States and Great Britain were 
 then at war, and of any national feeling that might be excited by
 
 DECISION OF JUDGE GILCHRI8T. 171 
 
 the sanguinary conflict that took place in the harbor of Fayal. We 
 shall examine, in the first place, the testimony of the witnesses, both 
 American and English, who were actors iu the transaction. 
 
 On the 27th day of September, 1814, Samuel G. Reid, the cap- 
 tain of the Armstrong ; Frederick A. Worth, the first lieutenant ; 
 Robert Johnson, third lieutenant ; Benjamin Starks, sailing-mas- 
 ter ; John Brosnoham, surgeon ; Robert E. Allen, captain of 
 marines ; Thomas Parsons, James Davis, Eliphalet Sheffield, and 
 Peter Tyson, prize masters of the brig, made oath before Mr. 
 Dabney, the American consul for the Azores, to a- declaration and 
 protest, the material parts of which are as follows : " That he (Reid) 
 sailed in and with said brig from the port of New York, on the 
 ninth day of September last past, well, found, staunch, and strong, 
 and manned with ninety officers and men for a cruise ; that nothing 
 material happened on the passage to this island, until the twenty- 
 sixth instant, when she cast anchor in this port, soon after twelve 
 o'clock at noon, with a view to get a supply of fresh water ; that 
 during the said afternoon his crew were employed in taking on board 
 water, when about sunset of the same day, the British brig of war, 
 Carnation, Captain Bentham, appeared suddenly, doubling round 
 the northeast point of this port ; she was immediately followed by the 
 British ship Rota, of thirty-eight guns, Captain P. Somerville ; and 
 the seventy-four gun phip Plantagenet, Captain Robert Lloyd ; 
 which latter, it is understood, commanded the squadron. They all 
 anchored about seven o'clock, P. M., and soon after, some suspicious 
 movements on their part, indicating an intention to violate the neu- 
 trality of the port, induced Captain Reid to order his brig to be 
 warped in shore, close under the guns of the castle ; that in the act 
 of doing so four boats approached his vessel, filled with armed men. 
 Captain Reid repeatedly hailed them, and warned them to keep off, 
 which they disregarding, he ordered his men to fire on them, which 
 was done, and killed and wounded several men. The boats returned 
 the fire, and killed one man, and wounded the first lieutenant ; they 
 then fled to their ships and prepared for a second and more formidar
 
 172 BRIG GENERAL ARMSTRONG. 
 
 ble attack. The American brig, in the meantime, was placed with- 
 in half cable's length of the shore, and within half pistol shot of 
 the castle. Soon after midnight, twelve, or as some state, fourteen 
 boats, supposed to contain nearly four hundred men, with small 
 cannon, swivels, blunderbuses, and other arms, made a violent 
 attack on the said brig, when a severe conflict ensued, which lasted 
 near forty minutes, and terminated in the total defeat and partial des- 
 truction of the boats, with an immense slaughter on the part of the 
 British. The loss of the Americans in the action was one lieuten- 
 ant and one seaman killed and two lieutenants and five seamen 
 wounded. At daybreak, the brig Carnation was brought close in, 
 and began a heavy cannonade on the American brig, when Captain 
 Reid, finding further resistance unavailing, abandoned the vessel, after 
 partially destroying her, and soon after, the British set her on fire. 
 The said Captain Reid, therefore, desires me to take his protest, as 
 he, by these presents, does most solemly protest, against the said 
 Lloyd, commander of the said squadron, and against the other com- 
 manders of the British ships engaged in this infamous attack on the 
 said vessel, when lying in a neutral, friendly port ; and the said 
 Captain Reid also protests against the government of Portugal, for 
 their inability to protect and defend the neutrality of this their port 
 and harbor ; as also, against all and other State or States, person 
 or persons, whom it now doth or may concern, for all losses, costs, 
 and damages that have arisen, or may arise to the owners, officers, 
 and crew of the said brig General Armstrong, in consequence of her 
 destruction, and the defeat of her cruise, in the manner afore- 
 said." 
 
 It will be perceived that Captain Reid and his officers state that 
 some suspicious movements, indicating an intention to violate the 
 neutrality of the port, induced Captain Reid to order his brig to 
 be warped in shore, close under the guns of the castle ; " that in the 
 act of doing so, four boats approached his vessel filled with 
 armed men. Captain Reid repeatedly hailed them, and warned 
 them to keep off, which they disregarding, he ordered his men to
 
 DECISION OF JUDGE GILCHEIST. 173 
 
 fire on them, which was done, and killed and wounded several men. 
 The boats returned the fire, and killed one man and wounded the 
 first lieutenant." 
 
 Here ten witnesses, upon whose veracity no imputation has been 
 cast, and who had the means of observation, give an account of a 
 transaction which happened under their own eyes, and in which they 
 took a part. 
 
 On the other side is the deposition of Lieutenant Robert Fausset, 
 sworn to on the 21th of September, 1814, before the British consul 
 at Fayal, who states that, " on Monday, the 26th instant, about 
 eight o'clock in the evening, he was ordered to go in the pinnace 
 or guard-boat, unarmed, on board his Majesty's brig Carnation, to 
 know what armed vessel was at anchor in the bay ; when Captain 
 Bentham, of said brig, ordered him to inquire of said vessel ; which, 
 by information, was said to be a privateer. "When said boat came 
 near the privateer, ' they hailed to say the Americans,' [which 
 probably should be, "the Americans hailed,"] and desired the 
 English boat to keep off, or they would fire into her ; upon which, 
 Mr. Fausset ordered his men to back astern, and with a boat-hook 
 was in the act of so doing, when the Americans, in the most wan- 
 ton manner, fired into the said English boat, killed two and 
 wounded seven, some of them mortally ; and this, notwithstanding 
 said Fausset frequently called out not to murder them, that they 
 struck and called for quarters. Said Fausset solemnly declared 
 that no resistance of any kind was made, nor conld they do it, not 
 having any arms, nor, of course, sent to attack said vessel. Also 
 several Portuguese boats, at the time of said unprecedented attack, 
 were going ashore, which, it seems, were said to be armed." 
 
 This deposition is said, in the letter of Count Tojal to Mr. Hop- 
 kins, of September 29th, 1849, to be " confirmed under oath by the 
 master and one seaman of that barge." 
 
 The contradictions are, that the protest says the boats were 
 armed, while Fausset says they were unarmed ; the protest says the 
 fire was returned, while Fausset says they made no resistance ; the
 
 174: BRIG GENKBAL ABM6TEONG. 
 
 protest says four boats approached the brig, while Fausset says he 
 approached with the pinnace only ; the protest says that the boats 
 disregarded the warning of Captain Reid to keep off, and that then 
 he fired ; Fausset says that upon being ordered to keep off, he 
 ordered his men to back astern, and was in the act of doing so 
 when the Americans fired. Upon all these matters, there is the 
 testimony of ten witnesses from the brig, against three from the 
 boat ; and, of course, the weight of evidence is decidedly in favor 
 of the Americans, admitting all the witnesses to have been equally 
 honest, and to have possessed equal opportunities for knowing the 
 truth. 
 
 Now, upon this evidence, derived as it is from the actors in the 
 transaction, who are the very best sources of information, no intelli- 
 gent jury could doubt for a moment that the statements in the pro- 
 test were proved. They would find the facts to be, as we do, that 
 four armed boats approached the brig ; that they were hailed and 
 ordered to keep off or they would be fired into ; that they dis- 
 regarded the warning 5 that the Americans then fired and killed 
 some of their men ; that they returned the fire, and killed one man 
 and wounded the first lieutenant. These facts we find to be proved 
 by the evidence. 
 
 But there are some statements in Fausset's deposition, which, to 
 say the least, are singular, and which cast some doubt upon the 
 entire correctness of his story. It appears from his deposition that 
 the British knew that the brig was an " armed vessel," and, " by 
 information, was said to be a privateer." He says that " he was 
 ordered to go in the pinnace or guard-boat, unarmed," to the Car- 
 nation, to know what vessel it was ; and the captain ordered him 
 to inquire of the brig. Now, it is singular, that in the evening, in 
 a time of war, the commodore of a British squadron should be so 
 particular as to order the boat to be unarmed, and still more singu- 
 lar that Captain Bentham should, at such a time, order an unarmed 
 boat to approach a vessel which he knew to be armed, and supposed 
 to be a privateer, and probably an American privateer. It was
 
 DECISION OF JUDGE GILCIIfclST. 175 
 
 i 
 
 not by sending out unarmed boats, under such circumstances, that 
 British naval officers attained for their country, and so long exer* 
 cised, the sovereignty of the eeas ; and the British officers of forty 
 years ago, were not trained in a school that would tolerate such 
 negligence. It is singular, also, that Fausset, who was sent to 
 inquire " what armed vessel was at anchor," did not hail the brig at 
 all ; but, instead of lying off at a proper distance and hailing the 
 brig, he was so near, when the Americans hailed him, that he says 
 he backed his boat astern with a boat-hook ! If he went there in 
 his unsuspecting simplicity merely to procure information, was it 
 necessary for him, in that quiet bay, and that moonlight night, to 
 run his boat directly against the vessel's side ? Could he not have 
 laid off a hundred feet from the brig, too far to board her, but near 
 enough to get an answer to his question ? His story is entirely 
 inconsistent with the position that he desired only to know what 
 vessel she was, and strongly confirms the assertion in the protest, 
 both that Captain Reid's warning was disregarded, and that the 
 boat returned the fire. It is difficult to understand the purpose of 
 Fausset's allusion to the Portuguese boats, which, " at the time of 
 the attack, were going ashore, which, it seems, were said to be 
 armed," unless it be to intimate that Captain Reid mistook Portu- 
 guese armed boats going ashore for English armed boats about to 
 attack his vessel. The Portuguese boats had nothing to do with the 
 affair ; this is the only allusion to them, and the fact of their 
 presence in the bay is wholly immaterial. It may be added that 
 Fausset says more than that the boat was unarmed, from which it 
 might be inferred that it was unarmed for an assault merely ; for 
 he says that " no resistance of any kind was made, nor could they 
 do it, not having any arms." He thus makes the condition of hia 
 boat so extremely defenceless, that his story fails to carry convic- 
 tion with it. 
 
 But it is said the Americans fired the first shot, and were, conse- 
 quently, the aggressors. That they fired the first shot is clear, but 
 the consequence does not follow that by so doing they were the
 
 176 BRIG GENERAL ARMSTRONG. 
 
 aggressors. Sir William Scott says, 3 Rob. 136, " that a ship 
 should station herself on neutral territory, and send out her boats 
 on hostile enterprises, is an act of hostility much too immediate to 
 be permitted." That the British did send out their boats on a 
 hostile enterprise, is, we think, too clear to admit of a doubt. 
 What, then, was Captain Reid to do, in the face of the moral cer- 
 tainty that the British were determined to capture his vessel ? 
 Was he to permit them to come on board ; to surrender the brave 
 men who look to him for an example, to be carried to the prison at 
 Dartmoor, or to be compelled to serve against their countrymen in 
 an English frigate ? Was he not rather to obey the dictate alike 
 of common sense and military honor, that in doubtful emergencies 
 it is safer and nobler to fight than to retreat ; and, beyond all this, 
 had he not a right, upon every principle that should animate a com- 
 mander, having done all that prudence and discretion could ask for, 
 to strike one blow in defence of his ship ? We have entirely mis- 
 taken the extent of the right of self-defence, if both law and reason 
 did not justify him in firing upon the English boats. 
 
 But, even in the absence of direct evidence, the presumption that 
 the boats were armed, and that the intention was hostile, is extreme- 
 ly strong. We were at war with England. When the British 
 squadron came into the port and discovered the American brig, it 
 was well understood that all the vessels present were ships of war. 
 It is absurd to say that these four boats were sent merely to recon- 
 noitre the brig. Such a force was entirely unnecessary for that pur- 
 pose. Such a thing was never heard of as that, in the evening, in 
 time of war, a naval commander would approach a vessel which he 
 did not know to be friendly, with four boats filled with unarmed 
 men. And even if Fausset's statement be assumed to be correct, 
 and one boat only approached the brig, it is extremely improbable 
 that, if his boat were unarmed, and his intentions were friendly, he 
 would, without hailing the brig, have come sufficiently near to her 
 to reach her with a boat-hook, when it was just as easy to ascer- 
 tain what vessel she was without coming so near as to excite sus-
 
 DECISION OF JUDGE GILCHEI8T. 177 
 
 piclon. Especially would he have been cantious not to come too 
 near, when as the protest states, " Captain Reid repeatedly hailed 
 them and warned them to keep off. It is also worthy of remark 
 that Fausset's deposition, made on the 27th of September, 1814, 
 was not produced until thirty-five years afterwards, when it first 
 made its appearance, on the 29th of September, 1849, in the letter of 
 Count Tojal to Mr. Hopkins. It is singular, too, that a new and 
 entirely different version of the transaction is given in the letter of 
 Senor De Castro to Mr. Barrow, of the 3d of August, 1843, in 
 which he says, " it is affirmed, on the part of Great Britain, that 
 they (the boats) only carried inoffensive men, who were going 
 ashore from their ships on duty, and that they casually met the 
 American brig when she was preparing to leave the port of Fayal." 
 It is enough to say of this statement that it directly contradicts 
 Fausset's deposition, and that both cannot be true. 
 
 In addition to the positive evidence and the presumptions, there 
 are also the contemporary declarations of the official persons at the 
 island. 
 
 Mr. Dabney, the American consul at Fayal, in his official note to 
 the governor of the Azores, dated at nine o'clock in the evening of 
 the 26th of September, 1814, says : " In violation of the neutrality, 
 etc., the ships-of-war of his Britannic Majesty, now lying in this 
 port, lately ordered four or five armed boats to surprise and carry 
 off the American armed schooner General Armstrong. * * * 
 The boats were repulsed, but a new and more formidable attack is 
 now feared," etc. On the 28th of September, 1814, the governor of 
 the Azores, Elias Jose Ribeiro, states in his dispatch to his govern- 
 ment as follows : " We are now, for the first time, made witnesses 
 to a horrible and bloody combat, occasioned by the madness, pride, 
 and arrogance of an insolent British officer, who would not respect 
 the neutrality maintained by Portugal in the existing contest be- 
 tween his Britannic Majesty and the "United States of America." 
 
 He also says : " I learned that a boat had been sent from the 
 British ships-of-war to examine the prrvateeer, and on its return 
 
 13
 
 178 BEIG GENERAL ARMSTRONG. 
 
 three others had been sent armed, and that the captain of the priva- 
 teer not wishing to allow them to come on board of his vessel, a fire 
 was begun on both sides." 
 
 The governor then states that he desired a conference with the 
 British commander, that he " might dissuade him, if he were a 
 reasonable man, from continuing the hostilities begun so insolently, 
 and repeated, to the scandalous contempt of the law of nations." 
 
 He further gays that he conceives the British commander " was 
 aware of the great evil done by his hostile expeditions in a port not 
 only neutral, but, moreover, belonging to an old friend and ally of 
 his nation ;" and that he wishes to show him his " resentment on 
 account of the insults committed by him ;" nor did he consider his 
 invitation to visit his ship " either proper or decorous." 
 
 The British commander, in answer to a request by the governor, 
 that he would respect the neutrality of the port, states, on the 26th 
 of September, " that one of the boats of his Britannic Majesty's 
 ship under my command was, without the slightest provocation, 
 fired on by the American schooner General Armstrong, in conse- 
 quence of which two men were killed and seven were wounded ; and 
 that the neutrality of the port, which I had determined to respect, 
 has been thereby violated. In consequence of this outrage, I am 
 determined to take possession of that vessel." To this the governor 
 replied : " I must, however, assure you, sir, that from the accounts 
 which I have received, it is certain that the British boats were the 
 first to attack the American schooner." 
 
 It appears, also, from the diplomatic correspondence, that the 
 United States always asserted, and that Portugal for a long time 
 admitted, that the British were the aggressors, and that there was 
 a just claim against Portugal. 
 
 In the letter of the Marquis d'Aguiar, the Minister of Foreign 
 Affairs, to Lord Strangford, the British minister, of December 22d, 
 1814 , he speaks of " the outrageous manner in which that comman- 
 der violated the neutrality * * by audaciously attacking the 
 American privateer," and of " the base attempt of the British com-
 
 DECISION OF JUDGE GILCHEI8T. 179 
 
 mander, at the time he commenced the unprovoked attack on the 
 American privateer, to attribute those violent measures to the 
 breaking the neutrality on the part of the Americans in the first 
 instance." 
 
 He states, also, that the Prince Regent had " directed the minis- 
 ter at London * * to require satisfaction and indemnification 
 not only for his subjects, but for the American privateer, whose 
 security was guaranteed by the safeguard of a neutral port." 
 
 Mr. Sumter, the American minister at Rio, in his letter of Janu- 
 ary 1, 1815, to the Marquis d'Aguiar, speaks of separation to the 
 Prince Regent of Portugal, for so "rude and degrading an attack 
 apon his sovereign authority." 
 
 In this letter to Mr. Sumter the Marquis speaks of " the manifest 
 violation of his territory (by the British) in the infringement of its 
 neutrality." 
 
 In Mr. Monroe's tetter, of the 3d of January, 1815, to Mr. 
 Sumter, he says : " The growing frequency of similar outrages on 
 the part of Great Britain renders it more than ever necessary for 
 the government of the United States to exact from nations in 
 amity with them a rigid fulfillment of all the obligations which a 
 neutral character imposes." 
 
 On the 14th of March, 1818, Mr. Adams, in a letter to the 
 Portuguese minister at Washington, said : " It is hoped your 
 government will, without further delay, grant to the sufferers by 
 that transaction the full indemnity to which they are by the laws 
 of nations entitled." 
 
 In the letter of Mr. Dickens, the acting Secretary of State, of 
 the 20th of May, 1835, to Mr. Kavanagh, the American charge* 
 at Lisbon, he says : " The Portuguese authorities at that place 
 having failed to afford to this vessel the protection to which she was 
 entitled in a friendly port, which she had entered as an asylum, 
 the government is unquestionably bound by the law of nations to 
 make good to the sufferers all the damages sustained in consequence 
 of the neglect of so obvious and acknowledged a duty."
 
 180 BRIO GENERAL ARMSTRONG. 
 
 Mr. Kavanagh states to Mr. Forsyth, from Lisbon, on the 30th 
 of January, 1836 : " It appears that the British commander 
 alleged at the time, that the crew of the General Armstrong had 
 provoked the first attack by firing into his boats 5 but tho protest 
 made and signed on the 27th of September, 1814, by Captain Reid 
 and all his officers, and corroborating circumstances, disprove this 
 allegation." He repeats his demand for indemnity in his letter of 
 the 17th of February, 1837, to the Portuguese Minister of Foreign 
 Affairs. 
 
 In his dispatch to Mr. Forsytb, of the 18th of March, 1837, he 
 states that he had had an interview with the minister, who " spoke 
 of the claim as one which at present could not be considered admis- 
 sible ;" and who said that " the Portuguese force at Fayal wag 
 altogether incompetent to protect the privateer against the assail- 
 ants." 
 
 On the 15th of January, 1842, Mr. Webster wrote to Mr. Bar- 
 row concerning the claim ; " Its justness, I believe, has never been 
 denied." And Mr Barrow makes the same statement in his letter 
 of May 25th, 1842, to the Portuguese Minister of Foreign Affairs, 
 Mr. Webster, in his letter to Mr. Barrow, of the 18th of August, 
 1842, speaking of this claim and that of James Hall, says : "Both 
 these claims are regarded as just by this government, and will not 
 be relinquished under the objections heretofore made to them by the 
 Portuguese gorernmeut, which are entirely unsatisfactory." 
 
 Mr. Barrow, in his letter of February 20th, 1843, to Mr. Web- 
 ster, says : " The pretexts for the delay in the two former cases 
 (the General Armstrong and James Hall) are of a very frivolous 
 character, and such will continue to be given, I am convinced, until 
 a very decided tone is assumed by our government." On the 20th 
 of March, 1843, he writes : " There has been from the first a mani- 
 fest disposition, I might say determination, on the part of the Por- 
 tuguese government ******* 
 to avoid the liability to which they are subject by the law of nations 
 TO the case of the General Armstrong."
 
 DECISION OF JUDGE GILCHRI8T. 181 
 
 Such are the contemporary declarations of witnesses who saw the 
 transaction ; the indignant remonstrance of the governor of the 
 Azores ; the admissions of the Portuguese government of the exis- 
 tence of a claim on our part, contained in their demand for an 
 indemnity from England, on account of the loss of the brig, and the 
 repeated assertions of our government of a violation of the neu- 
 trality by the British. Until the 4th of August, 1843, there had 
 been no denial, but an admission of the justice of this claim upon 
 them. But on that day the Portuguese Minister, in a letter to Mr. 
 Barrow, says : " The accounts all agree that the American brig, 
 under the pretext that four boats from the said British vessel were 
 approaching her, fired upon them, killing some of the men and 
 wounding others. * * * It is, however, an undeniable fact 
 that the first shot came from the American brig, thus evidently con- 
 stituting her the aggressor, and a violator of the neutrality of the port 
 of a friendly nation." 
 
 Now the Portuguese Minister must be presumed to have read 
 the evidence on the subject concerning which he thought fit to write 
 a letter, and his most extraordinary declaration that all the accounts 
 agreed that the American brig was the aggressor, must have been 
 made in the face of the letter of the governor of the Azores, of the 
 27th of September, 1814, that it was " certain that the British boats 
 were the first to attack the American schooner ;" and of his other 
 expressions of indignation at the conduct of the British. Whatever 
 it arose from, whether from an inability to appreciate the evidence, 
 a disposition to procrastinate, or an unwillingness to offend the 
 British government, its incorrectness is manifest. It may be 
 remarked, that among the published documents are to be found 
 allusions to the influence of the British minister in hindering the 
 payment of this claim by Portugal. It is singular, indeed, that the 
 Portuguese government should not have discovered that the evidence 
 proved the Americans to have been the aggressors until twenty-nine 
 years had elapsed since the affair, and until the production of Fans 
 get's deposition, which had slumbered ia obscurity during that period
 
 182 BRIG GENERAL ARMSTRONG. 
 
 That the British government felt an interest in the matter, appears 
 from Mr. Clayton's speech in the Senate, on the 26th of January, 
 1855. He says that the British minister " desired to confer with 
 me, on one occasion, in regard to the matter, but I declined any 
 conference with him on the subject. I though the British govern- 
 ment had no right to interfere." 
 
 The governor of Fayal made no complaint that the Americans had 
 violated the neutrality of the port. That discovery, as has been 
 stated, remained to be made by the Portuguese minister, in 1843. 
 The governor did, however, complain of Captain Lloyd, and remon- 
 strated against his proceedings ; and even the minister, in his letter of 
 August 3, 1843, says, that " the government of his Britannic Majesty, 
 appreciating the rashness with which his officers acted in a neutral 
 port against said brig, had no hesitation in apologizing to the Por- 
 tuguese government." This statement, however, was denied by the 
 British government, as appears from the letter of Count Tojal to 
 Mr. Clay, of the 15th of May, 1850. It does not appear to be 
 necessary to settle the question of veracity between them. 
 
 Considering it, then, as proved, that the British were the aggress- 
 ors, the question arises, whether it was the duty of Portugal, 
 according to the law of nations, to make pecuniary compensation 
 for the damages sustained by the injured party. 
 
 Upon this point the opinion of the government of the United 
 States, as expressed through the various Secretaries of State, is 
 entitled to much weight. That Portugal was bound to pay the 
 damages sustained, is asserted by Mr. Monroe, Mr. Adams, Mr. 
 Forsytb, Mr. Upshur, Mr. Webster, and Mr. Clayton. Mr. Forsyth, 
 in his letter of September 21, 1836, instructs Mr. Kavanagh to 
 " demand from the Portuguese authorities, the highest amount of 
 damages which in your judgment a prudent and conscientious man 
 would feel himself justified in asking, were he prosecuting his own 
 claim." The same instructions are given to Mr. Clay, in Mr. Clay- 
 ton's letter of March 8, 1850. 
 
 It is doing the eminent men who have occupied the responsible
 
 DECISION OF JUDGE GILCHBIST. 183 
 
 position of Secretary of State, great injustice to assert that when 
 they alleged that Portugal was liable in damages, they did not ex- 
 press their honest convictions, but condescended to the position of 
 an advocate. They had no temptation to say what they did not 
 believe. The claim was not made a party question, nor did it have 
 any connection with party politics. There was no call upon them 
 to. hazard their reputation as statesmen and jurists, upon a position 
 which they did not believe to be tenable. 
 
 But the case of Portugal is attempted to be put on the ground 
 that she was unable to protect her neutrality. 
 
 To this position there are two answers. In Count Tojal's letter 
 of March 9, 1850, to Mr. Clay, he says that, " no neutral is obliged 
 to give pecuniary indemnification for damages and material losses 
 that may have been caused in its ports by one belligerent to another, 
 once it can be shown that it has used all the means at its disposal 
 to give protection." 
 
 The answer to this is thus strongly put by Mr Clay, in his letter 
 to Count Tojal, of March, 15, 1850. He says : "What were the 
 means in her power ? She had the physical power of more than one 
 hundred regular soldiers, some artillery, a fort, the power of the 
 population of Payal, about thirty American seamen, who request- 
 ed to be allowed to defend their brethren, great advantage of posi- 
 tion, and the immense moral power of right against wrong ; these 
 were the means she had. Did she use all or any of them to pro- 
 tect and defend the privateer ? Confessedly she did not ; she even 
 went beyond mere failure to defend or protect, when she prevented 
 the American seamen from rendering whatever assistance was in 
 their power. And if she did not use all these means, is it not clear 
 from his excellency's own argument, that she is bound to indem- 
 . nify ?" 
 
 The whole tenor of the dispatch of the governor of the Azores, of 
 the 28th of September, 1814, shows that he used no means what- 
 ever with the British commander but expostulation. Although 
 indignant at the outrage upon the sovereignty of Portugal, the dis-
 
 184 BEIG GENERAL ARMSTRONG. 
 
 patch needs only a careful perusal to make it apparent that the 
 governor was paralyzed by the position in which he stood, and that 
 he had no firmness. He seems to take credit to himself for refusing 
 to consent that the American seamen might aid in defending the 
 brig, for taking away from the Americans, as they came ashore, 
 their swords and pistols, and for the energetic feat of ordering the 
 standard not to be hoisted over the castle the next morning, to show 
 his resentment at the conduct of the British. He mentions also his 
 decided act, in seizing two American seamen, who, during a funeral, 
 " gave shouts of joy on account of the fight and retreat in which 
 these officers lost their lives." All these might have been very bold 
 and gallant acts, but unfortunately for him, his own government 
 did not approve of his conduct. The Marquis d'Aguiar, the Por- 
 tuguese Minister of Foreign Affairs, in his letter to Lord Strangford, 
 of the 22d of* December, 1814, says, that if it were not for the idea 
 that he desired to protect the inhabitants from the ravages which 
 the British commander would not have failed to inflict, " the censur- 
 able moderation of the governor during these outrages would have 
 induced his royal highness to have immediately caused a process to 
 have been instituted for the punishment of that officer." The ques- 
 tion is not wheth-T Portugal was a stronger or a weaker nation than 
 Great Britain. It is simply whether at Fayal, and under the ex- 
 isting circumstances, the governor did what his duty required of him 
 as an officer of a neutral nation ; and his government answered 
 that question by saying that he did not do his duty. With these 
 facts and admissions, it is almost idle to say that Portugal was not 
 bound to make indemnity, because she was weak. Bynkershoeck 
 says : " If it be the duty of the sovereign to use his utmost endea- 
 vors to effect that purpose, it follows that he must do it at his own 
 expense. Nay, by going to war, if other means are not sufficient. 
 Such is the law which is observed among all nations." Bynker- 
 shoeck's Law of War, by Duponceau, p. 60. 
 
 But admitting, for the sake of argument, that the governor of the 
 Azores used all the means in his power, and was unable to resist
 
 DECISION OF JUDGE GILCHEIST. 185 
 
 the British force, the other answer to the position is, that the law 
 of nations did not relieve her from the obligation to make pecuniary 
 compensation. 
 
 Now, if Portugal was unable to protect her neutrality, that was 
 her misfortune. Chancellor Kent says : " If the enemy be attacked, 
 or any capture made under neutral protection, the neutral is bound 
 to redress the injury and effect restitution." 1 Kent, 122. That is, 
 if the enemy be attacked, the neutral is bound to redress the in- 
 jury ; if a capture be made, the neutral is bound to effect restitu- 
 tion. The question here does not relate to restitution of property 
 captured, but to the redress of an injury from a hostile attack. 
 How is an injury, sustained by reason of an attack upon the pro- 
 perty of an enemy's citizen, to be redressed, but by paying for the 
 injury done ? The position is stated absolutely, and without any 
 provisoes or limitations. Can it be that a neutral is bound to restore 
 a ship captured in its waters ; but if the ship be captured, and then 
 sunk by the enemy, no duty whatever rests upon the neutral ? The 
 same reason which requires a neutral to restore a captured vessel, 
 calls on it also to make compensation where a vessel is destroyed. 
 The same principle lies at the foundation of either duty. The posi- 
 tion that a neutral is bound to make restitution, but not compensa- 
 tion, may thus be stated : If the neutral sees a ship captured in its 
 waters, and is able to effect restitution, it is bound to do so. But 
 if restitution cannot be made from whatever cause, then the neutral 
 is to remonstrate to the belligerent who has done the wrong, and 
 who knows that the neutral has done all it could ; and if the belli- 
 gerent refuses to do anything in the matter, still the law of nations is 
 satisfied, and the affair is settled. Such was the course adopted in 
 the present case. The vessel was destroyed by the British, and the 
 neutral remonstrated, consequently, the neutral was absolved from 
 all obligation to make compensation. This distinction between res- 
 titution and reparation, although inappreciable, by the unassisted 
 reason, may exist in virtue of some mysterious afflatus, which is sup- 
 posed to inspire the councils of diplomatists. It is enough to say
 
 186 BRIG GENERAL ARMSTRONG. 
 
 that it deprives the law of nations on this point of all vitality, 
 and reduces it to a solemn absurdity. When a ship is destroyed, 
 this distinction releases the neutral from the obligation to do 
 what is physically impossible, but it absolves the neutral from the 
 duty of doing the only thing ill its power, that is, to effect restitu- 
 tion, 
 
 It is unnecessary to take the position that a neutral is bound 
 always to have in all its ports a force sufficient to resist any attack 
 that might be made. This would be unreasonable ; for even Eng- 
 land, with her powerful navy, could not accomplish it. But it is 
 equally unreasonable to say that because a neutral did not happen 
 to have at any given place a sufficient force to protect its neutrality, 
 therefore it is absolved from all duty, happen what may. That Por- 
 tugal, relatively to England, was a weak nation, may be admitted. 
 But she assumed to be neutral in the war between England and 
 America. As she claimed the rights, so she was subject to the 
 obligations of neutrality. If she was not strong enough to cause 
 herself to be respected as neutral, she should not have placed her- 
 self in that position. She chose her part in the great republic of 
 the world, and stood in the relation to other nations upon a com- 
 mon ground with them. It is said by Vattel, Prel. ch. 18, " since 
 men are naturally equal, and a perfect equality prevails in their 
 rights and obligations, as equally proceeding from nature, nations 
 composed of men, and considered as so many free persons, living 
 together in the state of nature, are naturally equal, and inherit 
 from nature the same obligations and rights. Power or weakness 
 does not in this respect produce any difference. A dwarf is as much 
 a man as a giant ; a small republic is no less a sovereign state than 
 the most powerful kingdom." This is a clear and precise statement 
 by an eminent writer of the reciprocal rights and obligations of na- 
 tions, whatever may be their relative power. As weakness does not 
 deprive a nation of its rights, it does not release her from the obli- 
 gations which she owes to other nations. A nation may be weak 
 as regards armies and fleets, but she may be wealthy. It may be a
 
 DECISION OF JUDGE GILCHBI8T. 187 
 
 part of her policy to avoid the expenditure of her resources in mili- 
 tary and naval preparation. She may choose to lavish her revenue 
 upon the empty forms and pageantry of government, disregarding 
 and careless of the advance and happiness of her people. But it 
 would be strange indeed, if the course she might see fit to adopt of 
 her own free will, should be received as an excuse for her non- 
 performance of the duties which she would exact towards her- 
 self from nations whose government might be better administered, 
 and whose revenues might be more carefully expended. 
 
 In Molloy's Treatise De Jure Maritimo, B. 1, Ch. 1, sec. 16, a 
 case is stated which affords an exact precedent for the one before 
 us. After mentioning several cases where hostile encounters were 
 forbidden in neutral ports, he says : " But they of Hamburgh 
 were not so kind to the English when the Dutch fleet fell into their 
 road, where rid at the same time some English merchantmen, whom 
 they assaulted, took, burnt, and spoiled ; for which action, and not 
 preserving the peace of their port, they were, by the law of nations, 
 adjudged to answer the damage, and I think have paid most or all 
 of it since." 
 
 It is not to be expected that many precedents are to be found 
 exactly resembling the present case, which was so peculiar in its 
 circumstances. During her long war with France, England, by her 
 powerful navy, was enabled to set at dcflance the law of nations in 
 respect to neutrals with impunity ; but the case cited from Molloy, 
 shows tht the English claimed from Hamburgh, in 1665, the same 
 compensation in damages which the present claimants demanded 
 from Portugal. It is unnecessary for us to pursue the investigation 
 of the question as to the liability of Portugal any further. We 
 have the opinion of the most eminent jurists and diplomatists of the 
 United States, the authority of Molloy, and, as we think we have 
 shown, the intrinsic propriety and reasonableness of the position. 
 We have found nothing in the books which deserves to be weighed 
 against these views. Even Flanders, in his treatise on Maritime 
 Law (p. 45,) although he states, as his individual opinion, that the
 
 188 
 
 BRIO GENERAL ARMSTRONG. 
 
 reasoning which m aintains the obligations of the neutral to answer 
 damages, seeing to him to be inconclusive, admits that' it is held by 
 writers on the law of nations that the neutral is bound to redress 
 the loss himself. But he cites no authority to the contrary, and he 
 can find no stronger ground on which to found his opinion, than that 
 the neutral is a host extending his hospitality to a belligerent who 
 comes into his port. But, with submission, we conceive that such is 
 not the relation in which the parties stand to each other. A nation 
 which assumes to be neutral has certain duties which she is compelled, 
 by the law of nations, to perform. It is said by Vattel, book 3, 
 ch. 7, 118 : "A neutral nation preserves towards both the belli- 
 gerent powers the several relations which nature has instituted be- 
 tween nations. She ought to show herself ready to render them 
 every office of humanity reciprocally due from one nation to another. 
 She ought, in everything not directly relating to war, to give them 
 all the assistance in her power, and of which they may stand in 
 need." It thus appears that the neutral is not a host extending 
 hospitality ex mera gratia, but is part of the great republic of 
 nations, bound to render offices of humanity. The parallel of this 
 writer, therefore, fails, and his opinion must fall with the inaccurate 
 figure which he uses to illustrate his views. 
 
 Our opinion is, that Portugal was bound, by the law of nations, 
 to make to the claimants pecuniary compensation. 
 . The proposition to refer this case to an arbitrator, came from the 
 Portuguese government. The course of the United Sbates had 
 been consistent throughout. We had always maintained that we 
 had a valid claim upon Portugal ; that the facts showed that the 
 British were the aggressors, and that, by the law of nations, Portu- 
 gal was bound to redress the injury sustained by our citizens. The 
 first remark on the subject of an arbitration we have found, is in 
 Mr. Claytons letter of the 8th of March, 1850, when he wrote to 
 Mr. Clay, the American charge* d'affaires at Lisbon : " In regard to 
 a reference of our claims to an arbitrator, which has been indicated, 
 the President has directed me to say that no such course will, under
 
 DECISION OF JtTDGE GILCHRI8T. 
 
 the circumstances, receive bis sanction ; and this for reasons too 
 'obvious to need enumeration." On the 30th of April, he wrote to 
 the Portuguese minister at Washington, that the matter would be 
 referred to Congress, " should the Portuguese government persevere 
 in the refusal to adjust and and settle what are believed to be the 
 incontrovertible claims of American citizens upon that government,'' 
 and he rejected the proposition of the minister to submit this claim 
 to arbitration. 
 
 The treaty between the ITnited States and Portugal was conclu^ 
 ded on the 26th of February, 1851. The first article provides that 
 Portugal shall pay to the United States a sum equivalent to the in- 
 demnities claimed for several American citizens. By the second 
 article it is agreed that the parties, " not being able to come to an 
 agreement upon the question of public law involved in the case of 
 the American privateer brig General Armstrong, that the claim 
 presented by the American government, in behalf of the captain, 
 officers, and crew of the said privateer, should be submitted to the 
 arbitrament of a sovereign, potentate, or chief of some nation io 
 amity with both the high contrating parties." 
 
 In relation to the arbitration we may remark, that in whatever 
 we may say upon the subject, we do not mean to be understood as 
 denying the right of the government of the "United States, acting 
 for the whole people, to submit to arbitration any controversy with 
 a foreign government, in which public interests are alone involved. 
 Nor is it necessary to deny the power of the United States to sub* 
 mit to arbitration the claim of one of its own citizens upon a for- 
 eign government which it has been prosecuting, in such a way as to 
 preclude itself from again pressing that claim upon such foreign 
 government, or insisting upon it in any way as a cause of war, or a 
 matter of national concern. There is a broad distinction between 
 the submission of a case involving national interests exclusively, 
 and the submission of a case relating to private rights alone, where 
 the only matter of public concern is the general duty of a govern- 
 ment to protect its citizens. Where a case of the latter description
 
 190 SRtG GENERAL ARMSTRONG. 
 
 is submitted, it mast be done with a due regard to the rights of the 
 citizen. If his rights be disregarded and sacrificed, it is the dictate 
 alike of law, common sense, and justice, that the government by 
 which his rights have been sacrificed, should make him restitution. 
 We think it cannot be denied, that to relieve a government from 
 liability to a citizen on this account, it should appear that the case , 
 was one proper to be submitted ; that he had an opportunity of , 
 being heard before the arbitrator by argument and proofs ; that the 
 award was certain, definite, and within the submission ; and that 
 the arbitrator did not exceed his powers. 
 
 In the first place, we are unable to perceive what good and suffi- 
 cient reasons there were, that required the United States to submit 
 the claims of their citizens upon a foreign government to arbitra- 
 tion. We find no reasons alleged in the correspondence that led to 
 the submission. A citizen of this republic is entitled to ask his 
 government, respectfully, why a given course was pursued in rela- 
 tion to his private rights. The government holds its public powers 
 by no higher tenure than the citizen possesses his private rights. 
 Public powers are delegated, and private rights are possessed, by 
 the will and assent of the people. The day is gone by, at least on 
 this side the Atlantic, when the rights and interests of millions can 
 be settled definitely by diplomatists in secret session, and when no 
 other answer to a complaint is condescended, than that such mat- 
 ters are mysteries of State, into which even the party aggrieved 
 has no right to inquire. We intrust our public interests to our 
 public officers, in the confidence that they will discharge their duty. 
 If those duties are neglected or mismanaged, we find a remedy in 
 the ballot-box. But when a citizen has a claim upon a foreign 
 government, which, from the nature of the case, as he is powerless 
 against the foreign government, can only be redressed through the 
 agency of his own government, and that claim is sacrificed by his 
 government, he has no remedy, unless his government will indem- 
 nify him. He may, surely, with propriety, ask the question, why 
 his claim was submitted ? In the present case, that the British
 
 DECISION OE JUDGE GILOHRI8T. 191 
 
 were the aggressors was a fact, patent, known at the time to 
 hundreds of persons, which we had always asserted to be true, and 
 which the evidence proves to be true. No impartial man can 
 investigate the evidence and reach any other conclusion. Not only 
 is the evidence on the point overwhelming, but such has always 
 been the position taken by the United States from 1814 to 1841, by 
 every administration, every Secretary of State, every American 
 minister, and, until the year 1843, admitted to be true by the Por- 
 tuguese government itself. If, as Mr. Webster wrote to Mr. Barrow 
 on the 13th of January, 1842, the justice of this claim had never 
 been denied, why did that eminent man consent to submit it to 
 arbitration ? What call was there upon him to put it out of the 
 power of the United States to perform that first and most sacred 
 of duties, protection of the rights of the humblest citizen. A party 
 who has a claim, of which no one denies the justice, is a most 
 unfit manager of his business, when he submits it to arbitration, 
 and thereby gives the arbitrator a discretionary authority to allow 
 or reject it at his pleasure. We had always asserted that Portugal 
 was bound by the law of nations to redress this injury; and there is 
 nothing in any part of the diplomatic correspondence on our part 
 that tends to show that we ever intended to recede from this posi- 
 tion. We had positively asserted that both the law and the facts 
 were with us. We had expressed our views in every form. We had 
 presented a firm, but temperate statement. We had resorted to 
 argument. We had, finally, asserted our fixed determination that 
 the injuries of our citizens must be redressed. Such being our posi- 
 tion, the inquiry may properly be made, why the various questions 
 in this case, involving the private rights of American citizens, 
 should be exposed to the hazard of being loosely and partially con- 
 sidered by an European sovereign who, to say the least, would be 
 as likely to be influenced by considerations of state policy as by a 
 regard to individual rights. If the government did not see fit to 
 have recourse to arms to enforce the claim, they might, at least, 
 have abstained from compromising the rights of the claimants.
 
 192 BRIG GENERAL ARMSTRONG. 
 
 But when the government were convinced that the facts were as the 
 claimants alleged, the conclusion of law followed of course. The 
 claimants alleged that the British were the aggressors. The gov- 
 ernment believed that such was the case, and that Portugal was 
 bound to pay the claim. These positions, then, being distinctly 
 taken, it may safely be said, that if this was a proper case for a 
 submission, no case ever existed that would justify a resort to hos- 
 tilities, so long as an arbitrator could be procured to determine the 
 controversy. 
 
 But whether this case was, iu itself, under the circumstances, 
 proper to be submitted to arbitration, there is a further view to be 
 taken of the submission. , %-< 
 
 On the 13th day of April, 1850 (Doc. 53, page 66), Count 
 Tojal wrote to Mr. Clay that the Portuguese government " will 
 now propose to refer this affair to the decision of a third power." 
 In his letter of July 6, 1850 (Doc. 53, page 73), Count Tojal 
 refers to several claims of American citizens upon Portugal. A 
 list of them is given, with the amount claimed in each. They are 
 ten in number, and the aggregate amount was $233,327. The 
 amount claimed in the case of the General Armstrong was $131,600. 
 The others amounted to $91,727. Count Tojal then says : " The 
 government of her majesty, animated with the same desire, etc., 
 yields to the force of circumstances, and without again reverting to 
 the justice or injustice of the claims presented by the government 
 of the United States, and only pro bono pads, offers to pay the said 
 mentioned claims, amounting to $91,727, according to Mr. Clay's 
 account, with the only exception of that relating to the privateer 
 General Armstrong. In respect to this claim the undersigned can- 
 not deviate from the proposal heretofore made to Mr. Clay, that 
 of so important a claim being submitted to the decision of a third 
 power." 
 
 It is to be noticed that the justice and legality of the claims, 
 which Count Tojal thus offered to pay, had been denied as strenu- 
 ously aa the claim relating to the General Armstrong. Why the
 
 DECISION OF JUDGE GILCHRIBT. 193 
 
 Portuguese government were unwilling to pay this claim, is indicated 
 by the following extract from the same letter of Count Tojal : 
 " Her majesty's government, besides the arguments contained in the 
 notes formerly addressed to the government of the "United States, 
 finds its judgment, and the manner of weighing the question of the 
 privateer General Armstrong, strengthened with the opinion of her 
 Britannic majesty's government, which has always deemed this claim 
 of the government of the United States unjust." Why, again, it 
 was necessary for Portugal to ask the opinion of England, is shown 
 by another extract from Count Tojal's letter, in which he says : 
 " The subsisting relations between her most faithful majesty's gov- 
 ernment and that of her Britannic majesty, oblige the undersigned 
 to communicate to the British government all that has taken place." 
 But whatever influences operated upon the Portuguese govern- 
 ment, and it is not difficult to appreciate them, the proposition made 
 by Count Tojal was not divisible. It was complete in itself. It 
 was not an absolute proposal to pay the other claims, but to pay 
 them, and to submit this to arbitration. As Portugal had, up 
 to the time of the proposition, invariably denied the justice of 
 the other claims, and as she said she offered to pay them and submit 
 this, only pro bono pads, we could not have called on her to pay 
 the other claims, unless we agreed to submit this to arbitration. It 
 would have been unreasonable in the extreme if our government had 
 called upon Portugal to pay the other claims without agreeing to 
 submit this. But that the proposal was one and indivisible is, we 
 think, too clear to admit of question, or to need argument in its 
 support. When, therefore, our government decided to accept the 
 proposal, as it did, by Mr. Webster's letter of the 23d of August, 
 1850, it assumed the right, which, ia the present case, we are not 
 disposed to deny or inquire into, of exposing the claim of the own- 
 ers of the General Armstrong to the chances of an arbitration, for 
 the purpose of procuring thereby the settlement of the remaining 
 claims upon Portugal, and of putting an end to all embarrassing 
 negotiations with that power. 
 
 14
 
 194: BRIO GENERAL ARMSTRONG. 
 
 The case does not call upon us to deuy the right of the United 
 States to submit to arbitration the claim of a citizen upon a foreign 
 government without his assent, or even against his protest, and the 
 question need not be investigated. Of course, his assent would 
 estop him afterwards from objecting that a submission was entered 
 into. As there is evidence upon this point, we have examined it 
 for the purpose of showing the relative position of the claimants and 
 the United States. 
 
 On the 5th of September, 1850, Mr. Reid, the agent for the 
 claimants, wrote to Mr. Webster : " I perceive it is proposed to 
 refer the claim of the owners of the brig General Armstrong to the 
 King of Sweden for arbitration. I hope the Department of State 
 will make no final arrangements in this case, under the present cir- 
 cumstances, and I desire that it may be left open until I can have a 
 conference with you on the subject. * * * * I hope no steps 
 will be taken which will compromise the rights of the claimants, until 
 I can have the pleasure of seeing you." To this letter Mr. Webster 
 answered, on the 13th of September, that the proposition of Count 
 Tojal to pay the several claims preferred by the American govern- 
 ment against that of Portugal, with the exception alone of that of 
 the General Armstrong, which was to be referred to the King of 
 Sweden etc., had already been accepted by the government. 
 
 We look in vain here for any evidence of assent to the submission. 
 When Mr. Reid hears that it is proposed to submit the claim, he 
 hopes that the matter will be left open until he can have a confer- 
 ence with Mr. Webster, and that no steps will be taken that will 
 compromise the rights of the claimants until he can see him. Do 
 these words mean the very reverse of what they express ? Does 
 Mr Reid mean, when he uses this language, to say that he assents 
 to the submission ? If so, language was given us to disguise our 
 thoughts, and not to express them. But not only does he not 
 assent to the submission, 'but it was agreed to without any opportu- 
 nity for him to assent or dissent, and without his knowing anything 
 about it ; for Mr. Webster informs him that the proposal of Count
 
 DECISION OF JUDGE GILCHRIST. 
 
 195 
 
 Tojal had already beeii accepted. If there ever were a plain case 
 of dissent, it is furnished by Mr. Reid's letter. There is no evidence 
 of his acquiescence in the submission, for all he did was to request 
 that he might be heard before the arbitrator, after he was informed 
 that the treaty had been concluded. 
 
 It may be proper to notice, in this connection, a position taken by 
 the solicitor, that a claimant, in a case like this, is conclusively 
 bound by the action of his government. In the instructions to Mr. 
 Kavanagh, of the 21st of September, 1836, Mr. Forsyth says : " It 
 is well understood that after asking the interference of their govern- 
 ment to procure redress for the injuries they supposed themselves to 
 have sustained, the parties must abide by such settlements as that 
 government may make." This proposition cannot be correct in the 
 broad language used. No individual can urge his claims upon a 
 foreign government with any hope of success, excepting that derived 
 from their sense of justice. A private person, armed with no power 
 of enforcing his rights, and unassisted by his own government, can- 
 not speak in sufficiently impressive tones to ensure his being heard 
 by a foreign nation. His own government, in the discharge of that 
 duty of protection which it owes to its citizens, must speak for him. 
 " If any complaint is to be made on the part of the captured, it 
 must be by his government to the neutral government for a fraudu- 
 lent or unworthy or unnecessary submission to a violation of its 
 territory." 1 Kent's Com., 121. If Mr. Forsyth's statement be 
 correct, the government would be justified in making use of and 
 surrendering the claim of one of its citizens for the purpose of pro- 
 curing the payment of the claim of another. If, by saying that 
 "the parties must abide by such settlements as the government may 
 make," it be meant only that the party, after such settlement has 
 been made, cannot enforce his claim against the foreign state, 
 the position is correct. But if it be meant that, whatever settle- 
 ment the government of the claimant may make, it incurs no respon- 
 sibility for the claim of its own citizens, the doctrine cannot be 
 admitted. In the case of the Baron De Bock vs. Regina, It Eng.
 
 196 BEIG GENERAL ARMSTRONG. 
 
 L. & Eq. Rep., 14, Lard St Leonards, the Lord Chancellor, said ; 
 " It is admitted law that if the subject of a country be spoliated by 
 a foreign government, he is entitled to obtain redress from the for- 
 eign government through the means of his own government. But 
 if, from weakness, timidity, or any other cause on the part of his own 
 government, no redress is obtained from the foreigner, then he has a 
 claim against his own country. Here is a compromise of the two 
 governments ; the question is, how far his claim is affected by it." 
 It cannot be supposed, however, that Mr. Forsyth intended to con- 
 vey the idea that whatever course the government might pursue, in 
 no event would it be liable to the claimant. Such a proposition 
 would be, in substance, that the government is not responsible for 
 wrong ; a ground which, we presume, no one would seriously attempt 
 to maintain. 
 
 Before examining the objections that have been made to the 
 award, it is proper to consider the position taken by the claimants, 
 that they were not permitted to be heard before the arbitrator. 
 
 The treaty having been ratified by the Senate an the 7th of 
 March, 1851, on the 19th of March Mr. Webster wrote his letter 
 of instruction to Mr. Hadduck, who had succeeded Mr. Clay as our 
 charge* at Portugal. The material part of this letter refers to the 
 third article of the treaty, which is as follows ; 
 
 " So soon as the consent of the sovereign, potentate, or chief of 
 some friendly nation who shall be chosen by the two high contract- 
 ing parties, shall have been obtained to act as arbiter in the afore- 
 said case of the privateer brig " General Armstrong," copies of all 
 correspondence which has passed, in reference to said claim, between 
 the two governments, shall be laid before the arbiter, to whose 
 decision the two high contracting parties hereby bind themselves to 
 submit." 
 
 Mr. Webster directs Mr. Hadduck " to compare and authenti- 
 cate, jointly with the Portuguese government, the copies therein 
 specified. You will understand, of course, that these copies are 
 limited to such communications as have passed between the Amer-
 
 DECISION OF JUDGE QILCHRI8T. 197 
 
 ican legation and the Portuguese government at Lisbon, and 
 between this department and the Portuguese legation in Washing- 
 ton." On the 12th of July, 1851, Mr. Webster wrote to Mr. Had- 
 dock, and after stating the instructions contained in his previous 
 letter, says : " To provide, however, against an omission of any 
 important part of the earlier portion of the correspondence I mean 
 that which passed in 1814 and 1815, in Rio Janeiro, where tin 
 court of Portugal at that time resided, and which it could not have 
 been intended to exclude I transmit to you herewith a printed 
 copy of the correspondence as communicated to Congress on the 15th 
 December, 1845." This letter, however, reached Mr. Hadduck too 
 late, as the treaty had been signed on the 23d of June previous. 
 The papers omitted where the whole of document 14 of the Senate, 
 1st session 29th Congress, covering fifty-eight pages. It is said 
 that the whole of this document is contained in substance in the 
 subsequent correspondence. One letter, however, was omitted, 
 upon which much stress was laid in the argument on the question of 
 fact, as to the party who made the first aggression. This was the 
 letter from Mr. Greaves, the British consul, dated on the 2tth of 
 September, 1814, to the governor of the Azores, informing him that if 
 the governor should permit the masts to be taken from the schooner, 
 the commander of the squadron would regard the island as an 
 enemy of his Britannic majesty, and would treat the town and 
 castle accordingly. This was relied upon as tending to prove that 
 Captain Lloyd desired to capture the brig and use her in his opera- 
 tions against this country. f , 
 
 But, not only was no provision made for laying before the arbi- 
 trator all the correspondence which might throw light upon the case, 
 but the claimants were refused the privilege of being heard before 
 the authority which was to decide upon their rights. Upon the tth 
 of July, 1851, the agent of the claimants filed, at the Department 
 of State, a written argument and statement of facts, which he 
 requested might be sent to our minister, that he might submit it to 
 the arbitrator, which was verbally refused, on the ground that the
 
 198 BRIG GENERAL ARMSTRONG. 
 
 terms of the treaty precluded it. To two notes to the Secretary of 
 State, to the same effect, he received no answer. He then request- 
 ed the President that he might be sent to France with the papers 
 and documents, that he might present his case through Mr. Rives ; 
 but this was also refused. 
 
 It may well be asked here, why was the case so submitted that 
 the party interested could not be heard ? If the United States, in 
 the plenitude of their power, see fit to submit the claim of a citizen 
 to arbitration without his assent, ought they not to make the most 
 careful and ample provision that he shall be fully and fairly heard, 
 and that he shall have all reasonable opportunity to lay before the 
 arbitrator the evidence on which he relies ? An award made with- 
 out the party having had an opportunity to be heard, rests neither 
 upon law nor justice. If the case was sufficiently national in its 
 bearings to be submitted to the arbitration of an European prince, 
 it was, surely, important enough to deserve a careful investigation 
 into the facts, and the parties, whose pecuniary interests were invol- 
 ved, were the very persons, of all others, to whom to intrust such 
 an investigation. 
 
 The position that every party should have an opportunity to be 
 heard before the tribunal that is to pass judgment on his rights, needs 
 no labored argument to support it. It has been repeatedly asserted 
 by the most eminent jurists. InRigden vs. Martin, 6 H. & Johns., 
 403, the court said : " that the parties ought to have notice of the 
 time of meeting, is a position so strongly supported by common justice 
 that it would seem not to require the aid of authorities. Every 
 man ought to have an opportunity afforded him to be heard in 
 defence of his rights." In Falconer vs. Montgomery, 4 Dallas, 232, 
 it is said : " The plainest dictates 9f natural justice must prescribe 
 to every tribunal the law that ' no man shall be condemned unheard.' 
 It is not merely an abstract rule, or positive right, but it is the 
 result of long experience and a wise attention to the feelings and 
 dispositions of human nature. * * * Besides, there is scarcely 
 a piece of written evidence, or a sentence of oral testimony, that is
 
 DECISION OF JUDGE GILOHBI8T. 199 
 
 not susceptible of some explanation, or exposed to some contradic- 
 tion ; there is scarcely an argument that may not be elucidated so 
 as to ensure success, or controverted so as to prevent it. To ex- 
 clude the party, therefore, from the opportunity of interposing in 
 any of these modes (which the most candid and intelligent, but a 
 disinterested person, may easily overlook) is not only a privation of 
 his right, but an act of injustice to the umpire, whose mind might 
 be materially influenced by such an interposition." In the case of 
 Lutz vs. Linthicum, 8 Peters, 118, Mr. Justice Story said : 
 " Without question, due notice should be given to the parties of the 
 time and place of hearing the cause ; and if the award was made 
 without such notice, it ought, upon the plainest principles of justice, 
 to be set aside." In Elmendorf vs. Harris, 23 Wend., 628, it was 
 laid down as a fundamental rule of construction in reference to every 
 transaction in the nature of a judicial proceeding, that the contract 
 of submission necessarily implies that the arbitrator is not author- 
 ized or empowered to decide the question in controversy, without 
 giving the parties an opportunity to be heard in relation thereto. 
 
 Mr. Webster's construction of the 3d article of the treaty, which 
 provided that the copies of the correspondence should be laid before 
 the arbiter, excluded the presentation of any argument. But the 
 article contains no words of exclusion, and it is not to be presumed 
 that the arbiter would have refused to consider an argument for the 
 claimants. The government refused to sanction, in any manner, the 
 presentment of the case of the claimants to the arbiter, and with- 
 out such sanction, no private person would be permitted to intervene, 
 of his own authority, between two nations. If Mr. Webster's con- 
 struction be correct, then such a treaty, in violation of the plainest 
 principles of justice, should not have been made. If his construc- 
 tion be wrong, then the agent was most unjustifiably hindered by 
 the government from presenting his case. Whatever may be the 
 true construction of the article, the claimants have suffered a wrong 
 at the hands of the government, for which reparation should be 
 made them.
 
 200 BKIG GKNKEAL ARMSTRONG. 
 
 We come now to the consideration of the award, and it is neces- 
 sary, iu the first place, to ascertain the matter submitted to the arbi- 
 trator. 
 
 The second article of the treaty is as follows : 
 
 " The high contracting parties not being able to come to an agree- 
 ment upon the question of public law involved in the case of the 
 American privateer brig General Armstrong, etc, have consented 
 that the claim presented by the American government, etc., should 
 be submitted to the arbitrament of a sovereign," etc. 
 
 The claim, then, was submitted, because the parties could not agree 
 upon the question of law ; it was not because they could not agree up- 
 on the facts, or the amount of the claim. Thus the matter in dispute was 
 the simple question of law. As that question should be determined, so 
 must be the award of the arbitrator. But that question was not 
 determined at all, the award being founded solely upon the facts. If 
 this construction of the submission be correct, it follows that the award 
 is void : firstly, because it does not settle the matter in dispute, and 
 the matter submitted ; and secondly, because it does settle the question 
 of fact, which was not submitted, and thus exceeds the submission. 
 
 But there is another view to be taken of the submission. Al- 
 though the question of law was that about which the parties 
 were unable to agree, the claim was submitted, and this compre- 
 hends both the question of law and the question of fact. Having 
 found the question of fact against the claimants, it is urged that 
 this decision, involving the fact tha,t the Americans were the aggres- 
 sors, is conclusive against the claimants. Such would undoubtedly 
 be the case if the claimants had the priviledge of being heard, by 
 laying before the arbitrator their argument and proofs. But it is 
 to be remembered, that in this case, not only was the submission 
 made without the assent of the claimants not only were they denied 
 all opportunity of appearing before the arbitrator but the case, 
 during all the period from the submission to the award, was in no 
 condition to be heard. It had never been prepared for trial. The 
 claimants had done all that was necessary for their immediate pur-
 
 DECISION OP JUDGE GILCHRIST. 201 
 
 pose : they had presented their claim to their own government, and 
 had requested that it might be urged upon the government of Portu- 
 gal. Mr. Webster did not suppose that all the evidence had been 
 famished on which the claimants rested their case, for on the 15th 
 of January, 1842, he wrote to Mr. Barrow : " If the inadmissibility 
 of the claim is made to depend upon the defect of evidence, or 
 upon any other cause, you will ascertain precisely what further evi- 
 dence is required in addition to that which has already been com- 
 municated by Captain Reid, and will be found on file in your lega- 
 tion." The transaction occured in the harbor of Fayal, near to the 
 shore, on a moonlight evening, and in the presence of innumerable 
 witnesses. If the facts were to be contested, the claimants should 
 have had the opportunity of procuring the testimony of those who 
 witnessed the affair, and of placing their case in the most favora- 
 ble light. This privilege not denied to the humblest suitor, in the 
 most pretty controversy. It has been denied to these claimants by 
 the action of their government. They are remediless as to Portu- 
 gal, for all claim is barred by the action under the treaty. Their 
 just rights have been disregarded and sacrificed by the United States ; 
 and the question then arises, whether the United States are bound 
 to make them compensation. 
 
 In relation to this point, we have the facts that the British were 
 the aggressors ; that the owners of the brig had a valid claim upon 
 Portugal for indemnity ; that the claim was submitted to arbitra- 
 tion by virtue of the power of the United States to do so, without 
 the assent of the claimants ; that the treaty was so worded as, by 
 Mr. Webster's construction, to deprive the claimants of all opportu- 
 nity of being heard in any manner ; that the United States refused 
 to sanction their application to be heard ; that they were not heard ; 
 that the award was made without their privity, in their absence, and 
 in violation of the universal principle that no one shall be condemned 
 unheard ; and that they were entitled to be heard upon every prin- 
 ciple of private justice, public law, and that regard to equity and 
 fair dealing, without which, neither a nation nor an individual can
 
 202 BKIG GENERAL ARMSTRONG. 
 
 ever be respected. It is entirely immaterial whether the question 
 submitted was one of law or of fact. Even if we admit, for the sake 
 of the argument, that upon the evidence now before us, it was doubt- 
 ful which party was the aggressor, and even if we admit in the same 
 way that the validity of the claim upon Portugal was a doubtful 
 question, that does not at all affect the right of the party interested 
 to be heard. So much the greater call was there upon the United 
 States to provide that they should be heard. The principles of jus- 
 tice are universal, and not local. They are as binding upon the 
 Emperor of the French as upon the humblest tribunal. Every step 
 in this affair, from the acceptance of the proposal by Portugal to 
 submit the case, to the ratification of the treaty, was the act of the 
 United States alone. The award having been made against the 
 United States, they are answerable to the claimants for the loss they 
 have sustained, upon the principle that a nation, being entitled to 
 the allegiance and obedience of its citizens, is solemnly bound, in 
 return, to protect, not only their person, but their property. It is 
 said by Vattel (ch. 2, 17) : " If a nation is obliged to preserve 
 itself, it is no less obliged carefully to preserve all its members. 
 The nation owes this to itself, since the loss even of one of its mem- 
 bers weakens it, and is injurious to its preservation. It owes this 
 also to its members in particular, in consequence of the very act of 
 association ; for those who compose a nation, are united for their 
 defence and common advantage ; and none can justly be deprived 
 of this union, and of the advantages he expects to derive from it, 
 while he, on his side, fulfills the conditions. The body of a nation 
 cannot then abandon a province, a town, or even a single individual 
 who is a part of it, unless compelled to do it by necessity, or indis- 
 pensably obliged to it by the strongest reasons, founded on the 
 public safety." 
 
 It is on this duty of protection that the duty of allegiance depends. 
 We owe allegiance to the country where we were born, where we 
 were educated, and under the protection of whose laws we live. To 
 it we owe the sacrifice of our comfort, our property, and our lives,
 
 DISSENTING OPINION OF JUDGE BLAOKFORD. 203 
 
 when the occasion requires it. And it is from the existence of these 
 comprehensive duties on our part, that the reciprocal duty of pro- 
 tection arises. Our country is bound to protect our rights as 
 individuals ; and if this protection be not afforded us, she is bound to 
 render us such an equivalent as it is in her power to bestow. Against 
 another nation she is bouud to assert our claims, for she alone can 
 meet such an antagonist on equal terms. If she neglects the sacred 
 duty of protecting us in our rights, she is bound to make us compen- 
 sation. These principles are not recent discoveries. They are as 
 old as the institution of civil government. Their recognition by a 
 state is the surest and firmest bond by which the citizen is attached 
 to his government and his country. They embody the same idea 
 expressed by the Lord Chancellor in the case of the Baron de Bode, 
 to which we have referred, that " if, from weakness, timidity, or any 
 other cause, on the part of his own government, no redress is 
 obtained from the foreigner, he (the citizen) has a claim against his 
 own country." In the case of Farnam vs. Brooks, 9 Pick., p. 239, 
 Parker, C. J., intimates an opinion' that there is an obligation on the 
 government of the United States to procure redress for its citizens, 
 or itself to reimburse them. 
 
 In relation to the question of damages, no evidence has been laid 
 before us. The sum claimed of Portugal is mentioned in the corres- 
 pondence, but no proof of the damages sustained appears in the case. 
 Upon this point testimony must be taken. 
 
 DISSENTING OPINION DELIVERED BY JUDGE BLIACKFORD. 
 
 I dissent from the judgment of the court in this case. 
 
 This is a claim against the United States for one hundred and 
 thirty-one thousand, six hundred dollars. The claim is presented by 
 Samuel C. Reid, on behalf of himself and of the owners, officers, 
 and crew of the American privateer General Armstrong.
 
 204 BRIG GENERAL ARMSTRONG. 
 
 This privateer, on the 26th and 27th days of September, 1814, 
 during the last war between the United States and Great Britain, 
 was destroyed by certain British ships of war in a harbor of the 
 island of Fayal. The kingdom of Portugal, to which Fayal 
 belonged, was, at the time, a neutral nation ; and, consequently, 
 the combat of the belligerents, in which the privateer was destroyed, 
 was a violation of the laws of nations. The commencement of this 
 conflict was between the privateer and a boat or boats of the 
 British ships, in which first encounter there were a few persons 
 killed and some wounded. But the governor of the island knew 
 nothing of these first acts of hostility uutil after they had occurred. 
 As soon as he was informed of their occurrence, he used every exer- 
 tion in bis power, by peaceable measures, to prevent any further 
 hostile acts by the British, but without success. He did not, to be 
 sure, resort to force ; and it is evident, that owing to the want of 
 means, he could not, by force, have prevented the disaster which 
 ensued. 
 
 On said 27th of September, 1814, Samuel C. Reid, the captain 
 of the privateer, entered his written protest, in which he charged 
 the British vessels with being the aggressors. This protest is 
 sworn to by the captain, the first and third lieutenants, the sailing 
 master, surgeon, captain of marines, and four prize masters of the 
 brig. There are, also, as to the aggression, the statements of the 
 American consul and of the governor of Fayal. On the other 
 hand, a lieutenant of the British navy, and commander of a barge, 
 engaged in the conflict, together with the master and one of the 
 seamen of the barge, made oath, on said 27th of September, 1814, 
 before the British consul at Fayal, showing, if their statements be 
 true, the privateer to have been the aggressor. 
 
 On the 19th of December, 1814, Jenkins & Havens, as agents 
 of those concerned in the privateer, requested the government of 
 the United States to demand of Portugal compensation for the 
 damage sustained by the loss of the vessel. 
 
 It appears by a letter of the Portuguese minister of the 22d of
 
 DISSENTING OPINION OF JFOGE fcLACKFOKIX 205 
 
 December, 1814, that the Prince Regent of Portugal, upon infor- 
 mation of the governor of Fayal, had directed his minister in 
 London to require of the British government " satisfaction and 
 indemnification, not only for his subjects, but for the American 
 privateer, whose security was guaranteed by the safeguard of a 
 neutral port*" 
 
 On the day after the date of that letter, the Portuguese minister 
 enclosed to Mr. Sumter, the American minister at Rio Janeiro, a 
 copy of the advices received from the governor of Fayal respecting 
 the destruction of the privateer, with a communication, saying : 
 " His royal highness, however, flatters himself that the citizens 
 of the United States will not have reason to complain of the Portu- 
 guese governor in that conflict, having used his utmost power to 
 prevent the evil that occurred. The British government refused 
 the indemnification demanded by Portugal for the loss of the priva- 
 teer, alleging, according to Count Tojal, that the conduct of Com- 
 inodore Lloyd was fully justified as a mere act of retaliation, pro- 
 voked by the hostilities previously commenced by Captain Reid. 
 
 On the 3d of January, 1815, Mr. Monroe, Secretary of State, 
 instructed Mr. Sumter, the American minister aforesaid^ " to bring 
 all the circumstances of the transaction distinctly to the view of the 
 Portuguese government, and to state the claim which the injured 
 party had to immediate indemnification." In December following, 
 Mr. Sumter wrote to Mr. Monroe as follows ; " I have not had the 
 good fortune to receive any letter from your department of a later 
 date than that of the 3d of January last, which related solely to 
 the reclamation to be made in favor of the General Armstrong pri- 
 vateer destroyed by the British at Fayal. You will have seen by 
 my note of the first of January, that I had already attended to 
 that affair. Others of a similar kind have been represented since. 
 The only answer I have yet obtained is, that inquiry has been 
 ordered in the other cases ; and that a demand of satisfaction had 
 been made in the case of the Armstrong." In 1818, Mr. Adams, 
 Secretary of State, wrote to the Portuguese minister relative to the
 
 206 BRIG GENERAL ARMSTRONG. 
 
 claim, concluding his note as follows : " It is hoped your govern- 
 ment will, without further delay, grant to the sufferers by that 
 transaction, the full indemnity to which they are, by the laws of 
 nations, entitled." In 1837, Mr. Kavanagh, our charge* d'affaires 
 at Lisbon, in compliance with his instructions, demanded of Portu- 
 gal satisfaction for said injury. 
 
 lu 1841, Captain Reid, as agent aforesaid, wrote to Mr. Web- 
 ster j Secretary of State, informing him that the President had been 
 applied to " concerning their claims upon the Portuguese govern- 
 ment, for the entire loss of that vessel," and urging Mr. Webster 
 to assist the claimants. Mr. Webste^ accordingly, in January, 
 
 1842, instructed Mr. Barrow, .our charge d'affaires at Lisbon, to 
 present the claim to the Minister of Foreign Affairs, which instruc- 
 tion was complied with in May, 1842. The Portuguese minister, in 
 
 1843, refused the demand, alleging that the privateer was the 
 aggressor, and that the Portuguese authorities had used every 
 means in their power to prevent the deed. In 1844, the Secretary 
 of State, Mr. Upshur, wrote to Samuel C. Reid, Jr., as follows : 
 
 DEPARTMENT OF STATE, 
 
 Washington, January 10, 1844. 
 
 SIR : At the repeated instance of yourself and others, interested in the 
 case of the privateer General Armstrong, this government has again and 
 again instructed its representatives at Lisbon to bring the claim to the notice 
 of the government of Portugal. This has been done, and every argument has 
 been employed to induce Portugal to acknowledge the justice of the claim, 
 and to make due reparation. All these efforts, of which you are well aware, 
 have proved unavailing, and the Department of State is unwilling, under all 
 the circumstances, to renew the application, having every reason to believe 
 that all future applications will prove as fruitless as those that are past. 
 Argument and importunity have been exhausted, and this government can 
 see nothing in the circumstances to justify or warrant it in having recourse 
 to any other weapons. 
 
 I am, sir, your obedient servant, 
 
 A, P. UPSHUB, 
 
 SAMUEL C. REID, JR., ESQ., New Orleans.
 
 DISSENTING OPINION OF JUDGE BLACKFORD. 207 
 
 The gentleman, howeve^ to whom the above letter was addressed, 
 endeavored, by his subsequent letters, to persuade our government 
 to continue the negotiation with Portugal. But Mr. Calhoun, the 
 (successor of Mr. Upshur in the State Department, took the same 
 view of the subject with Mr. Upshur. In a letter to Mr. Johnson, 
 of Louisiana, Mr. Calhoun says : " The case of the General Arm- 
 strong was disposed of by my predecessor upon grounds which 
 appear to me to be judicious and proper. Of this, Mr. Reid has 
 been duly informed ; and I can see no good reason, under the cir- 
 cumstances, for renewing the claim, or for continuing a correspon- 
 dence on the subject." 
 
 In 1849, this claim against Portugal was renewed at Lisbon, in 
 pursuance of instructions from Mr. Clayton, Secretary of State, but 
 without success. In April, 1850, on the demand being again made 
 by our government, Portugal offered to refer the matter to arbitra- 
 tion, mentioning the King of Sweden as the arbitrator. The offer 
 was rejected. In July, 1850, another proposition to refer the case 
 to arbitration was made by Portugal. This last proposition was, 
 on the 5th of September of the same year, accepted by Mr. Web- 
 ster, then Secretary of State. A treaty was accordingly, on the 
 26th of February, 1851, entered into between the two governments, 
 by which the said claim against Portugal was submitted to the 
 arbitrament of some sovereign, potentate, or chief, of some nation 
 in amity with both the high contracting parties. 
 
 The President of the French Republic, Louis Napoleon, was 
 afterwards selected as the arbiter, and he consented to discharge 
 the dnty. On the llth of December, 1852, the arbiter caused to 
 be delivered, at Paris, to the respective ministers of the United 
 States and Portugal, his award in favor of Portugal, as follows : 
 
 TRANSLATION OP THE AWARD OF PRESIDENT NAPOLEON, IN THE CASE OP THE 
 " GENERAL ARMSTRONG." 
 
 We, Louis Napoleon, President of the French Republic : 
 The Government of the United States, and that of her Majesty the Queen 
 of Portugal and of the Algarves, having, by the terms of a convention signed
 
 208 BEIG GENERAL ARMSTRONG. 
 
 at Washington on the 26th of February, 1851, asked us to pronounce as 
 arbiter upon a claim relative to the American privaieer " General Armstrong," 
 which was destroyed in the port of Fayal, on the 27th of September, 1814 ; 
 after having caused ourself to be correctly and circumstantially informed ia 
 regard to the facts which have been the cause of the difference, and after 
 having maturely examined the documents duly signed in the name of the two 
 parties, which have been submitted to our inspection by the representatives of 
 both powers, considering that it is clear, in fact, that the United States were 
 at war with her Britannic Majesty, and her most faithful Majesty preserving 
 her neutrality, the American brig, the " General Armstrong," commanded by 
 Captain Reid, legally provided with letters of marque, and armed for priva- 
 teering purposes, having sailed from the port of New York, did, on the 26th 
 of September, 1814, cast Anchor in the port of Fayal, one of the Azores 
 Islands, constituting part of her most faithful Majesty's dominions ; 
 
 That it is equally clear that, on the evening of the same day, an English 
 squadron, commanded by Commodore Lloyd, entered the same port ; 
 
 That it is no less certain that during the following night, regardless of the 
 rights of sovereignty and neutrality of her most faithful Majesty, a bloody 
 encounter took place between the Americans and the English ; and that on 
 the following day, the 27th of September, one of the vessels belonging to the 
 English squadron came to range herself near the American privateer for the 
 purpose of cannonading her ; that this demonstration, accompanied by the 
 act, determined Captain Reid, followed by his crew, to abandon his vessel 
 and to destroy her ; 
 
 Considering that if it be clear that, on the night of the 26th of September, 
 some English long boats, commanded by Lieutenant Robert Fausset, of the 
 British navy, approached the American brig, the " General Armstrong," it is 
 not certain that the men who manned the boats aforesaid, were provided with 
 arms and ammunition ; 
 
 That it is evident, in fact, from the documents which have been exhibited 
 that the aforesaid long boats, having approached the American brig, the crew 
 of the latter, after having hailed them and summoned them to be off, imme- 
 diately fired upon them, and that some men were killed on board the English 
 boats, and others wounded some of whom mortally without any attempt 
 having been made on the part of the crew of the boats to repel at once force 
 by force ; 
 
 Considering that the report of the governor of Fayal proves that the 
 American captain did not apply to the Portuguese government for protec- 
 tion until blood had already been shed, and, when the fire had ceased, the
 
 DISSENTING OPINION OF JUDGE BLACKFOBD. 209 
 
 brig " General Armstrong " came to anchor under the castle at a distance of 
 a stone's throw ; that said governor states, that it was only then, that he was 
 informed of what was passing in the port ; that he did, on several occasions, 
 interpose with Commodore Lloyd, with a view of obtaining a cessation of 
 hostilities, and to complain of the violation of a neutral territory ; 
 
 That he effectively prevented some American sailors, who were on land, 
 from embarking on board the American brig, for the purpose of prolonging a 
 conflict wnich was contrary to the law of nations ; 
 
 That the weakness of the garrison of the island, and the constant disman- 
 tling of the forts, by the removal of the guns which guarded them, rendered 
 all armed intervention on his part impossible ; 
 
 Considering, in this state of things, that Captain Reid, not having applied 
 from the beginning for the intervention of the neutral sovereign, and having ' 
 had recourse to arms in order to repel an unjust aggression of which he pre- 
 tended to be the object, has thus failed to respect the neutrality of the terri- 
 tory of the foreign sovereign, and released that sovereign of the obligation in , 
 which he was to afford him protection by any other means than that of a 
 pacific intervention ; 
 
 From which it follows, that the government of her most faithful Majesty 
 cannot be held responsible for the results of the collision which took place in 
 contempt of her rights of sovereignty, in violation of the neutrality of her 
 territory, and without the local officers or lieutenants having been required 
 in proper time, and enabled to grant aid and protection to those having a 
 right to the same ; 
 
 Therefore, we have decided, and we declare, that the claim presented by 
 the government of the United States against her most faithful Majesty has no 
 foundation, and that no indemnity is due by Portugal in consequence of the 
 loss of the American brig, the " General Armstrong," armed for privateering 
 purposes. 
 
 Done and signed by duplicate, under the seal of State, at the palace of the 
 Tuileries, on the thirtieth day of the month of November, in the year of 
 grace one thousand eight hundred and fifty-two. 
 
 r L . g i L. NAPOLEON. 
 
 The whole correspondence between the American and Portuguese 
 governments respecting this claim, together with other papers in 
 the case, are printed, and will accompany this opinion. 
 
 The question to be decided is, whether, under the circumstances 
 
 15
 
 210 BRIG GENERAL ARMSTRONG. 
 
 of the case, the United States .are liable to the claimants for the 
 loss occasioned by the destruction of the privateer ? 
 
 The claimants contend that they once had a valid claim against 
 Portugal for one hundred and thirty-one thousand six hundred dol- 
 lar ; that they have lost that claim by the mismanagement of the 
 same by the United States ; and that the United States are there- 
 fore bound, by law, to pay them the amount so lost. 
 
 The first inquiry to be made is relative to the nature of the de- 
 mand of the claimants against Portugal. 
 
 There is no absolute certainty, from the evidence, as to whether 
 the privateer or the British were the aggressors. The first gun 
 was fired by the privateer, but that firing may have been justifiable 
 in self-defence. Whether it was so or not, is a question upon which 
 there is contradictory evidence. On the part of Portugal, we have 
 the deposition of Lieutenant Fausset, of the British navy, and two 
 of his men, dated the 27th of September, 1814, which, according to 
 a copy furnished by the Portuguese minister, is as follows : " That 
 on Monday, the 26th instant, about eight o'clock in the evening, he 
 was ordered to go in the pinnace or guard-boat, unarmed, on board 
 her Majesty's brig Carnation, to know what armed vessel was at 
 anchor in the bay, when Captain Bentham, of said brig, ordered 
 him to inquire of said vessel (which, by information, was said to 
 be a privateer). When said boat came near the privateer, they 
 hailed te say the Americans, and desired the English boat to keep 
 off, or they would fire into her ; upon which Mr. Fausset ordered 
 his men to back astern, and with a boat-hook was in the act of so 
 doing, when the Americans, in the most wanton manner, fired into 
 said English boat, killed two and wounded seven, some of them 
 mortally, and this, notwithstanding said Fausset frequently called 
 out not to murder them ; that they struck and called for quarters ; 
 said Fausset solemnly declared that no resistance of any kind 
 was made, nor could they do it, not having any arms, nor, of course, 
 sent to attack said vessel. Also, several Portuguese boats, at the 
 time of said unprecedented attack, were going ashore, which, it 
 seems, were said to be armed."
 
 OPimotf OF JUDGE BLACKFORD. 211 
 
 On the part of the privateer, we have the protest of Captain Reid 
 and his officers before stated, made and sworn to on said 27th of 
 September, 1814. That protest, after mentioning the privateer's 
 arrival at Fayal soon after noon of the previous day, says : " That 
 during the said afternoon his crew were employed in taking on 
 board water, when about sunset of the same day, the British brig 
 of war Carnation, Captain Bentham, appeared suddenly doubling 
 round the northeast point of this port. She was immediately fol- 
 lowed by the British ship Rota, of thirty-eight guns, Captain P. 
 Somerville, and the seventy-four gun ship Plantagenet, Captain 
 Robert Lloyd, which latter, it is understood, commanded the 
 squadron. They all anchored about seven o'clock, P. M. and 
 soon after some some suspicious movements on their part, indi- 
 cating an intention to violate the neutrality of the port, induced 
 Captain Reid to order his brig to be warped in shore, close under 
 the guns of the castle ; that in the act of doing so, four boats ap- 
 proached his vessel filled with armed men. Captain Reid repeat- 
 edly hailed them, and warned them to keep off; which they disre^ 
 garding, he ordered his men to fire on them, which was done, and 
 killed and wounded several men. The boats returned the fire, and 
 killed one man and wounded the first lieutenant ; they then fled to 
 their ships and prepared for a second and more formidable attack. 
 The American brig, in the mean time, was placed within half a 
 cable's length of the shore, and within half a pistol shot of the 
 castle. Soon after midnight, twelve, or, as some state, fourteen 
 boats, supposed to contain nearly .four hundred men, with small 
 cannon, swivels, blunderbusses, and other arms, made a violent 
 attack on said brig, when a severe conflict ensued, which lasted 
 near forty minutes, and terminated in the total defeat and partial 
 destruction of the boats, with an immense slaughter on the part of 
 the British. The loss of the Americans in the actions was, one lieu- 
 tenant and one seaman killed, and two lieutenants and five seamen 
 wounded. At daybreak the brig Carnation was brought close in, 
 and began a heavy cannonade on the American brig, when Captain 
 Reid, finding further resistance unavailing, abandoned the vessel,
 
 212 BRIG GENERAL AKM8TEOKG. 
 
 after partially destroying her, and soon after the British set her on 
 fire." 
 
 The American consul at Fayal, in his note of September 26, 1814, 
 to the governor of the Azores, says : " In violation of the neutra- 
 lity which his royal highness, the Prince Regent, has promised to 
 observe towards the United States of America and England in the 
 present war, the ships of war of his Britannic Majesty, now lying in 
 this port, lately ordered four or five armed boats to surprise and 
 carry off the American armefl schooner General Armstrong, which 
 is lying here under the guns of the castle, on the protection of which 
 she regarded herself absolutely in security. The boats were 
 repulsed, but a new and more formidable attack is now feared." A 
 relation of the conflict, similar to that given in Captain Reid's pro- 
 test, is given by the governor of the Azores, but as he was not pre- 
 sent at the commencement, he could only speak from information as 
 to that part of it. The Portuguese minister then at Rio Janeiro, 
 considered, from information received from the said governor, that 
 the British were the aggressors, and in his letter on the subject to 
 the British minister, in December, 1814, he denounced the conduct 
 of the British commander in very strong terms. 
 
 It appears to me, from an examination of the evidence of those 
 persons having any personal knowledge of the affair, which evidence 
 is contradictory, and none of which is impeached, that the question 
 of fact in controversy as to whether the privateer or the British 
 ships were the aggressors, was a fair one for negotiation between 
 the United States and Portugal, and to be referred, if they could 
 not agree, to some proper tribunal for adjudication. 
 
 There is another inquiry relative to the demand of the claimants 
 against Portugal, and that is, whether, supposing the British ves- 
 sels to have been the aggressors, the laws of nations rendered Por- 
 tugal liable for the loss of the privateer ? 
 
 Had the privateer, instead of being destroyed, been captured 
 only by the British, and had afterwards come into the possession of 
 Portugal, there is no doubt but that Portugal would have been
 
 DISSENTING OPINION OF JUDGE BLACKFOKD. 213 
 
 bound to restore the vessel to the original owners ; nor is there any 
 doubt but that the governor of Fayal, if he had had the power, 
 would have been bound to endeavor, by force, to prevent the dis- 
 aster. But the difficulty as to these matters is, that the privateer 
 having been destroyed could not be restored, and that the gover- 
 nor had no means by which he could have prevented, by force, the 
 destruction of the privateer. The above stated question therefore, 
 whether, supposing the British to have been the aggressors, Por- 
 tugal was liable, by the laws of nations, to pay for the privateer, is 
 not entirely free from doubt. And the cause of the doubt is, that 
 the privateer was never in the possession of Portugal, and there was 
 no neglect of duty by the governor of Fayal. Chancellor Kent, in 
 one part of his Commentaries, says : " It is not lawful to make 
 neutral territory the scene of hostility, or to attack an enemy while 
 within it, and if the enemy be attacked, or any capture made under 
 neutral protection, the neutral is bound to redress the injury and 
 effect restitution." 1 Kent's Com., lit. But on a subsequent 
 page his language is as follows : " A neutral has no right to 
 inquire into the validity of a capture, except in cases in which the 
 rights of neutral jurisdiction were violated ; and in such cases, the 
 neutral power will restore the property, if found in the hand of the 
 offender, and within its jurisdiction, regardless of any sentence of 
 condemnation by a court of a belligerent captor. It belongs 
 solely to the neutral government to raise the objection to a capture 
 and title, founded on the violation of neutral rights. The adverse 
 belligerent has no right to complain when the prize is duly libelled 
 before a competent court. If any complaint is to be made on the 
 part of the captured, it must be by his government to the neutral 
 government, for a fraudulent, or unworthy, or unnecessary submis- 
 sion to a violation of its territory -, and such submission will natu- 
 rally provoke retaliation." (1 Kent's Com., 121.) If this last-cited 
 passage from Kent be the law, Portugal was not liable, because 
 it is certain that the governor of Fayal did not submit to the 
 outrage fraudulently, or unworthily, or unnecessarily. But, on the
 
 BEIG GENERAL ARMSTRONG. 
 
 contrary, he endeavored, as soon as he had notice of the hostile 
 acts, to prevent, by peaceable means, the further violation of the 
 neutrality of the port ; and he had no other means by which it 
 could be prevented. Wheaton's language is as follows : " Where 
 a capture of enemy's property is made within neutral territory, or 
 by armaments unlawfully fitted out within the same, it is the 
 right as well as the duty of the neutral State, where the property 
 thus taken comes into its possession, to restore it to the original 
 owners. (Wheaton's International Law, 494 ) This doctrine of 
 Wheaton agrees with that laid down by Kent in the passage last 
 above cited from his Commentaries. Kent there says, that in 
 cases in which the rights of neutral jurisdiction are violated, " the 
 neutral power will restore the property, if found in the hands of the 
 offender and within its jurisdiction." This doctrine of these 
 eminent American authors is decidedly in favor of Portugal ; for 
 if her liability depended on her having possession of the privateer, 
 she certainly was not liable, the yessel having been destroyed by 
 the British ships. 
 
 The question respecting the liability of Portugal under the 
 circumstances of the case, does not appear to be settled by foreign 
 writers on the laws of nations. Bynkershoek may be considered to 
 be against the Portuguese side of the question. (Bynkershoek on 
 the Law of War, 59, 60.) But Kluber, who is a much later 
 writer, is in favor of Portugal. This last named author says : 
 " That the neutral is not to allow, voluntarily, that either of the 
 belligerent parties shall commit, upon its neutral territory, either 
 continental or maritime, any hostile acts." (Kluber's Law of 
 Nations, page 86, section 284.) Portugal was not accountable for 
 the outrage, according to the authority of Kluber, because it is 
 clear that the governor of Fayal did not allow, voluntarily, the 
 breach of the neutrality of the port. This doctrine of Kluber is 
 substantially the same with that of Kent last referred to ; the 
 latter author saying, that the complaint against the neutral gov- 
 ernment must be for " a fraudulent, or unworthy, or unnecessary
 
 DISSENTING OPINION OF JUDGE BLA.CKFOED. 215 
 
 submission to a violation of territory." That there was no such 
 submission in this case, is shown by the correspondence between 
 the governor and the British commander during the night of the 
 26th of September aforesaid. Indeed, Captain Reid's protest con- 
 fines his complaint to the inability of Portugal. That protest 
 says : " And the said Captain Reid also protests against the gov- 
 ernment of Portugal, for their inability to protect and defend the 
 neutrality of this their port and harbor." 
 
 It appears to me, therefore, that the question of public law 
 involved in the present case, as well as the question of fact before 
 referred to, was a very proper subject to be submitted by the 
 governments of the United States and Portugal to arbitration. 
 
 The questions mentioned above were exceedingly important. 
 Not only a large amount of money depended upon the result, but, 
 what is of infinitely higher concern, the honor of two independent 
 nations was involved in the controversy. Those questions, both of 
 fact and of law, had been the subjects of negotiation for more than 
 thirty years previously to 1851, when the treaty between the two 
 governments was entered into submitting the controversy to arbi- 
 tration, which resulted in an award, by the President of the French 
 republic, against the validity of the claim. 
 
 In consequence of that award, the claimants have abandoned their 
 claim against Portugal ; but they now turn round and demand the 
 amount, namely, one hundred and thirty-one thousand six hundred 
 dollars against the United States. The ground of this demand is, 
 that the Secretaries of State, and the President and Senate of the 
 United States, have lost, by mismanagement, the claim against Por- 
 tugal, and have thus made their own government liable for the 
 amount. There are several charges of mismanagement insisted on, 
 which will be particularly noticed. 
 
 One of the charges, which is that of neglect in the negotiation, 
 admits of a short answer. The delay which occurred, from the time 
 the claim was presented soon after it originated, till 1837, is account- 
 ed for by the disordered state of the government of Portugal during
 
 216 BBIO GENERAL ARMSTRONG. 
 
 that period. The Secretary of State, Mr. McLean, in 1834, gives 
 the unsettled political affairs of Portugal as a reason for not then 
 insisting on the claim. The claimants, in their argument, made part 
 of their memorial to Congress, in 1854, says ; " These delays were 
 occasioned, as will appear by the correspondence, by the peculiar 
 condition of the government of Portugal, and the indisposition of 
 the American government to urge this claim on her, until that gov- 
 ernment should be placed in a better situation, and under better 
 auspices; but the owners have never failed to make continual claim," 
 etc. The American charge* d'affaires at Lisbon, gives to the Portu- 
 guese minister, in 1850, the following reason for the non-presenta- 
 tion of the claim between 1815 and 1831, namely: "The disincli- 
 nation of the government of the United States to urge the claim 
 upon Portugal, convulsed, as she almost continually was, by intestine 
 difficulties." 
 
 Another charge of mismanagement of the claim, relates to the sub- 
 mission to arbitration. 
 
 The claimants say that our government received a bonus from Por- 
 tugal as a consideration for referring the case. This objection must 
 depend upon the face of the treaty. That was made, on the part 
 of our government, by the President and Senate. It was by the 
 treaty alone that the case was referred. The treaty commences as 
 follows: "The United States of America and Her Most Faithful Ma- 
 jesty, the Queen of Portugal and of the Algarves, equally animated 
 with the desire to maintain the relations of harmony and amity which 
 have always existed, and which it is desirable to preserve between the 
 two Powers, having agreed to terminate, by a convention, the pending 
 questions between their respective governments, in relation to certain 
 pecuniary claims of American citizens, presented by the government 
 of the United States against the government of Portugal, have ap- 
 pointed as their plenipotentiaries for that purpose," etc. The first 
 article is as follows : " Her Most Faithful Majesty, the Queen of 
 Portugal and of the Algarves, appreciating the difficulty of the 
 two governments agreeing upon the subject of said claims, from the
 
 DISSENTING OPINION OF JUDGE BLACKFORD. 217 
 
 difference of opinion entertained by them respectively, which diffi- 
 culty might hazard the continuance of the good understanding now 
 prevailing between them, and resolved to maintain the same unim- 
 paired, has assented to pay to the government of the United States a 
 sum equivalent to the indemnities claimed for several American citi- 
 zens (with the exception of that mentioned in the fourth article,) 
 and which sum the government of the United States undertakes to 
 receive in full satisfaction of said claims, except as aforesaid, and to 
 distribute the same among the claimants." The second and third 
 articles merely provide for the submission to arbitration of the case 
 of the brig General Armstrong. The fourth article is as follows ; 
 " The pecuniary indemnities which Her Most Faithful J^ajesty pro- 
 mises to pay, or cause to be paid, for all the claims presented pre- 
 vious to the 6th day of July, 1850, in behalf of the American citizens, 
 by the government of the United States (with the exception of 
 that of the General Armstrong, ) are fixed at ninety-one thousand 
 seven hundred and twenty-seven dollars, in accordance with the cor- 
 respondence between the two governments." The other articles 
 have no bearing on the question. There is surely nothing in this 
 treaty to support, in the slightest degree, the idea that the submis- 
 sion of the case, by the President and Senate, was in consideration 
 of a bonus, or for any other purpose than that of having the claim 
 properly and legally investigated and determined. The treaty pro- 
 vides for the payment of all the other claims except that of the Gen- 
 eral Armstrong, and refers that claim to arbitration ; and that is 
 the whole of the treaty as regards the submission. It is unneces- 
 sary, surely, to notice any further this extraordinary charge against 
 the treaty-making power of the United States. 
 
 Another charge is, that our government had no authority to sub- 
 mit the case to arbitration, without consulting the claimants. This 
 position is untenable. When the government, at the request of the 
 claimants, consented to make a demand on Portugal for the alleged 
 claim, the controversy became one between government and govern- 
 ment, which might, if the governments chose, be referred to arbitra-
 
 218 BRIG GENEEAi ARMSTRONG. 
 
 tion. The law of nations on this subject is stated by Mr. Wildman 
 to be as follows : 
 
 " The only pacific modes of settling differences, which cannot be 
 adjusted by negotiation, are arbitration and reprisal. First, with 
 respect to arbitration : An arbitrator is a person authorized by the 
 parties in difference, to decide what shall be done with regard to the 
 matters submitted to his judgment. Where the award of an arbi- 
 trator is final, and confined to the terms of the submission, it is con- 
 clusive, unless it has been made in collusion with one of the parties. 
 Puffendorf, book 5, chap. 13 ; Vattel, book 2, sec. 329. For 
 there is no superior authority by which the validity of such an award 
 can be examined, and consequently it is binding, although it be 
 nnjust. Grotius, book 3, chap. 20, sec. 46 ; Puffendorf, ibid." 
 1 Wildman's International Law, p. 186, chap. 5. 
 
 It is certain, therefore, that the submission to arbitration of the 
 controversy, relative to the claim against Portugal, was in strict 
 accordance with the laws of nations. The idea that the government 
 was not authorized to refer the case to a third power, without con- 
 sulting the claimants, is not well-founded. The correct view of this 
 matter, is that as soon as our government was induced by the claim- 
 ants to interfere, the controversy became an affair of state, to be 
 treated of between the two governments as other differences be- 
 tween nations are treated that is to say, by negotiation, and such 
 other modes as are recognized by the laws of nations. But, further 
 it appears that the claimants acquiesced in the reference. The pre- 
 sent Secretary of State, Mr Marcy, in his letter of 1854, to the 
 chairman of Foreign Relation, says: "From an examination of the 
 files of the department, it appears that, pending the negotiations 
 which terminated in the convention with Portugal of 1851, two let- 
 ters were addressed to the Secretary of State, on the subject of the 
 reference of the Armstrong claim to the arbitration of a third 
 Power : one dated August 26, 1850, by S. C. Reid, 'late comman- 
 der of the privateer General Armstrong,' and the other dated Sep- 
 tember 5, 1850, by S. C. Reid, jr., ' sole and only authorized agent
 
 . DISSENTING OPINION OF JUDGE BLAOKFOED. 219 
 
 of the claimants ' to the case. Copies of these letters, and of the 
 replies thereto, are herewith enclosed. There are several other let- 
 ters from the last-named gentleman on the same subject, and of sub- 
 sequent dates, among the files of the department, from which it 
 would appear that the claimants in the case had acquiesced in the 
 decision of their government to agree to refer their claim to arbi- 
 trament. If a different opinion was entertained by them, it is at 
 least certain that their authorized agent did not, in any letters to 
 this department, protest against that decision, or intimate doubts 
 as to its propriety or expediency." Those statements of the Secre- 
 tary seem to be, at all events, a full answer to this charge. 
 
 Another charge of mismanagement is the refusal of the Secretary 
 of State, Mr. Webster, to forward to the arbiter a written argument 
 of the claimants. 
 
 The treaty between the two governments, by which the case was 
 referred, contains the following article : 
 
 " ART. 3. So soon as the consent of the sovereign, potentate, or 
 chief of some friendly nation, who shall be chosen by the two high 
 contracting parties, shall have been obtained to act as arbiter in the 
 aforesaid case of the privateer brig G-eneral Armstrong, copies of all 
 correspondence, which has passed in reference to said claim between 
 the two governments and their respective representatives, shall be 
 laid before the arbiter, to whose decision the two high contracting 
 parties hereby bind themselves to submit." 
 
 It appears to me that this language of the treaty shows that the 
 arbiter was to determine the case upon the correspondence which had 
 taken place on the subject between the two governments. That cor- 
 respondence had been very extensive, and had been conducted with 
 great ability on both sides. The questions of fact and of law belong- 
 ing to the case had been fully investigated by the gentlemen to whom 
 the business was confided. It would seem to have been proper, under 
 those circumstances, for the parties to submit the cause to the arbiter 
 upon the correspondence, without further argument by either of them. 
 The claimants had no additional evidence to furnish. It is proper,
 
 220 BRIG GENERAL ARMSTRONG. 
 
 also, to add, that if, as the claimants contend, Mr. Webster's refusal 
 to forward the argument was improper, he was guilty of a wrong to 
 the claimants. Now the law is settled, that for any such wrong by 
 a public officer, the government is not liable to the individual injured. 
 The language of Judge Story on this subject is as follows : " In the 
 next place, as to the liability of public agents for torts or wrongs 
 done in the course of their agency, it is plain that the government 
 itself is not responsible for the misfeasances, or wrongs, or negli- 
 gences, or omissions of duty of the subordinate officers or agents 
 employed in the public service ; for it does not undertake to guaranty 
 to any persons the fidelity of any of the officers or agents whom it 
 employs, since that would involve it, in all its operations, in endless 
 embarrassments, and difficulties, and losses, which would be sub- 
 versive of the public interests ; and, indeed, laches are never im- 
 putable to the government." Story on Agency, section 319. 
 
 To place this charge in its true light, I must borrow the argument 
 of an eminent statesman. Mr. Webster, in his refusal to forward 
 the argument, was either right or wrong. If Mr. Webster was 
 right, then there is an end of the charge. If Mr. Webster was 
 wrong, then there is an end of the charge also ; because the govern- 
 ment is not liable for the wrong of a public officer in his action 
 respecting a private claim. So that whether Mr. Webster was right 
 or wrong, there is no ground for the charge. 
 
 The claimants make one more charge of mismanagement of their 
 claim, namely, that the award should have been rejected as not 
 being within the terms of the submission. 
 
 The claimants say that the arbiter has decided on the facts of the 
 case, when he was only authorized to decide a question of law. The 
 second article of the treaty referring the case is as follows : 
 
 "The high contracting parties not being able to come to an 
 agreement upon the question of public law involved in the case of 
 the American privateer brig General Armstrong, destroyed by 
 British vessels in the waters of the island of Fayal, in September, 
 1814, Her Most Faithful Majesty has proposed, and the United
 
 DISSENTING OPINION OF JUDGE BLACKFOED. 221 
 
 States of America have consented, that the claim presented by the 
 American government in behalf of the captain, officers, and crew, of 
 the said privateer, should be submitted to the arbitrament of a sove- 
 reign, potentate, or chief of some nation in amity with both the 
 high contracting parties." The third article (hereinbefore copied) 
 contains the following provision : "Copies of all correspondence 
 which has passed, in reference to said claim, between the two gov- 
 ernments and their respective representatives, shall be laid before 
 the arbiter, to whose decision the two high contracting parties hereby 
 bind themselves to submit." The second article commences by 
 saying, that the parties disagreed respecting the question of public 
 law ; but when the article comes to state the agreement to submit, 
 it says, that Her Most Faithful Majesty has proposed, and the 
 United States of America have consented, that the claim presented 
 by the American government in behalf, etc., should be submitted to 
 the arbitrament, etc. ; and the third article, in order to enable the 
 arbiter to determine the merits of the claim, directs that copies of all 
 the correspondence, in reference to the claim, should be laid before 
 him. It seems, therefore, to be very clear that the merits of the 
 claim, that is, both the facts and law, were submitted to the arbiter, 
 and were to be decided by him. 
 
 The consequence is, that the award, which is in favor of Portugal 
 upon the facts that the case and the law applicable to them as they 
 were understood by the arbiter, must be considered to be within the 
 submission, and to have been rightly accepted by the government. 
 
 I have now examined all the charges made by the claimants against 
 the United States as to the management of the claim, and have come 
 to the conclusion that none of them are sustainable. 
 
 But there is another and more enlarged view of this case, which it 
 is proper to notice. This view is presented by the following letters 
 of instruction from Mr. Forsyth, as Secretary of State, to Mr. Kav- 
 anagh, our charge" d'affaires at Lisbon, in regard to the present 
 claim :
 
 BRIG GENERAL ARMSTRONG. 
 
 DBPABTMBSI OF STATB, 
 
 Washington, October 22, 183&, 
 
 SIR : In a dispatch addressed to you on the 20th of May last (No. 4), your 
 attention was called to a claim of the owners, officers, and crew of the Amer- 
 ican privateer General Armstrong, which was captured and destroyed by a 
 British fleet in the port of Fayal, during the last war between the United States 
 and Great Britain ; and you were informed that Captain Reid, who represented 
 himself to be the agent of the parties concerned, would be requested to transmit 
 to you the necessary documents to establish the claim, and to show the amount 
 of damages to which the persons interested were entitled. Permission having 
 been granted to Captain Reid to forward those documents through the depart- 
 ment, the enclosed papers have just been received from him, and are transmit- 
 ted to you without examination. The department is not to be understood) 
 therefore, as expressing any opinion in respect to their sufficiency for the 
 purpose for which they are designed, or as to the amount of the claim which 
 you are to make upon the Portuguese government. It is not thought necessary 
 to add anything to the instructions which have heretofore been given to you 
 upon the subject. 
 
 I am, sir, your obedient servant, 
 
 JOHN FORSTTB. 
 
 {Retract.] 
 DKFABTUXHT OF STITK, 
 
 Washington, September 21, 1886. 
 
 SIR: * * * * * * 
 
 It is not necessary that you should wait for any further opinion of the 
 department upon the claim of the owners, officers, and crew of the privateer 
 General Armstrong. You have already been instructed as to the general 
 character of this claim, and the principle upon which it is founded. You will 
 make the best use of such testimony as has been furnished you by the claim- 
 ants in its support ; and as it is well understood that, after asking the inter- 
 ference of their government to procure redress for the injuries they supposed 
 themselves to have sustained, the parties must abide by such settlements as 
 that government may make, you will, after a careful examination of the evi- 
 dence, demand from the Portuguese authorities the highest amount of damages 
 which, in your judgment, a prudent and conscientious man would feel himself 
 justified in asking, were he prosecuting his own claim. * * * 
 I am, sir, your obedient servant, 
 
 JOHN FORSYTE.
 
 DISSENTING OPINION OF JUDGE BLACKFOED, 223 
 
 The doctrine of this last letter of Mr. Forsyth's is similar to that 
 stated by Mr. Adams, as Secretary of State, in 1823. The follow* 
 ing is Mr. Adams's language : " Bat unacknowledged, unsettled, 
 unliquidated claims form the natural subject of negotiation, and of 
 all negotiation the necessary and essential character is compromise. 
 Of such claims, whether originating in contract or in wrong, the 
 very application of an individual to one government to assist him in 
 the enforcement of his claims upon another, imports, of itself, the 
 consciousness that he cannot obtain his claims without that assistance, 
 and makes them at once a subject of negotiation and compromise." 
 House Rep. 1 vol., 1 sess. 33d Congress. 
 
 I consider when, at the request of a claimant on a foreign nation, 
 our government, without consideration, assents to interfere in his 
 behalf, its action may be by negotiation, compromise, arbitration, or 
 even by reprisals or war. But in the adoption %f any such measure, 
 the government, by the understanding of the parties, and by the 
 laws of nations, exercises its own judgment and discretion. The 
 claim thus in the possession of the government, becomes a national 
 one, to be attended to as other claims of the nation are attended to. 
 The government on such occasions acts, not as an agent of the 
 claimants, but in its sovereign capacity, and with a view not merely 
 to the individual interest of the claimant, but to the general welfare 
 of the nation. It frequently happens where a number of citizens of 
 one nation have claims on another nation, and solicit the interfer* 
 ence of their own government, that a treaty is entered into between 
 the two nations, by which the claims are discharged on the payment 
 of a certain sum to be distributed among the claimants. If that sum 
 prove insufficient, the claimants must bear the loss. The case is one 
 of compromise, and the claimants must abide by it. See the commu- 
 nication of Mr. Adams above referred to. The judgment and discre- 
 tion of our government in the present case, were exercised by the 
 President and Senate in referring, by a treaty with Portugal, the 
 claim in question to the arbitrament of the President of the French 
 republic, and by the executive department in its negotiations with
 
 224 BBIG GENERAL AEMSTEONG. 
 
 the Portuguese authorities before and after the submission. This 
 exercise of judgment and discretion by the treaty-making power, 
 and by the executive department, was political in its nature, and is 
 entirely independent of the judiciary. The result was an award of 
 the arbiter, upon the merits, in favor of Portugal. That award 
 must be considered final and conclusive. Grotius, as to the effect 
 of such an award, says : " Although the civil law may decide upon 
 the conduct of such arbitrators, to whom a compromise is referred, 
 so as to allow an appeal from their decision, or complaints against 
 their injustice ; this can never take place between kings and nations. 
 For here there is no superior power that can either rivet or relax 
 the bonds of an engagement. The decree, therefore, of such arbiter 
 must be final and without appeal." Grotius, book 3, ch. 20. The 
 claimants admit that the award is conclusive as regards Portugal. 
 That admission is intended as a justification for their now charging 
 the United States instead of Portugal ; but there is no reason for 
 the charge. Our government never had any concern in the claim, 
 except that, to oblige the claimants, and on their repeated and 
 urgent solicitations, it made great efforts for many years to obtain 
 for them from Portugal the amount they claimed. These efforts 
 failed of success only because the claimants did not furnish sufficient 
 evidence to satisfy the arbitrator that their claims were valid. That 
 being the case, I know of no ground upon which the United States 
 can be considered liable for the claim in a court of justice, governed, 
 as this court is, by legal principles. The bravery of the officers and 
 crew of the privateer in the conflict at Fayal cannot be too highly 
 admired. For their valor on that occasion, they received from 
 Congress, in 1834, an appropriation, as prize money, of ten thou- 
 sand dollars. For any other compensation, to which the present 
 claimants may believe themselves entitled, they must rely, in my 
 opinion, not upon any legal right, but upon the liberality of Con- 
 gress. 
 
 For the above reasons, I dissent from the judgment of the major- 
 ity of the court in this case.
 
 APPENDIX. 
 
 To Captain S. G. Reid, commander of the private armed "brig of war 
 called the General Armstrong. 
 
 INSTRUCTIONS FOR THE PRIVATE ARMED VESSELS OF THE 
 UNITED STATES. 
 
 1. The tenor of your commission under the act of Congress, entitled 
 " An act concerning letters of marque, prizes, and prize goods," a copy 
 of which is hereto annexed, will be kept constantly in your view. The 
 high seas, referred to in your commission, you will understand, generally, 
 to extend to low water mark ; but with the exception of the space 
 within one league, or three miles, from the shore of countries at peace 
 both with Great Britain and with the United States. You may, never- 
 theless, execute your commission within that distance of the shore of a 
 nation at war with Great Britain, and even on the waters within the 
 jurisdiction of such nation, if permitted so to do. 
 
 2. You are to pay the strictest regard to the rights of neutral powers, 
 and the usages of civilized nations ; and in all your proceedings towards 
 neutral vessels, you are to give them as little molestation or interruption 
 as will consist with the right of ascertaining their neutral character, and 
 of detaining and bringing them in for regular adjudication, in the proper 
 cases. You are particularly to avoid even the appearance of using force 
 or seduction, with a view to deprive such vessels of their crews, or of 
 their passengers, other than persons in the military service of the 
 enemy. 
 
 3. Towards enemy vessels and their crews, you are to proceed, in 
 exercising the rights of war, with all the justice and humanity which 
 characterize the nation of which you are members. 
 
 16 225
 
 226 APPENDIX. 
 
 4. The master and one or more of the principal persons belonging to 
 captured vessels, are to be sent, as soon after the capture as maybe, to 
 the judge or judges of the proper court in the United States, to be 
 examined upon oath, touching the interest or property of the captured 
 vessel and her lading : and at the same time are to be delivered to the 
 judge or judges, all passes, charter parties, bills of lading, invoices, let- 
 ters and other documents and writings found on board ; the said papers 
 to be proved by the affidavit of the commander of the capturing vessel, 
 or some other person present at the capture, to be produced as they 
 were received, without fraud, addition, subduction or embezzlement. 
 By command of the President of the U. 8. of America. 
 
 JAMBS MONROE, Secretary of State. 
 
 LETTER OF INSTRUCTIONS FROM MESSRS. JENKINS & 
 HAVENS, AGENTS, TO OAPT. SAMUEL 0. REID. 
 
 (Copy) New YORK, 3d Sept., 1814. 
 
 CAPT. SAMUEL 0. REID: 
 
 The private armed brig of war General Armstrong under your 
 command, being now ready for a cruise, it becomes necessary for us to 
 furnish instructions thereto in doing this, we do not mean to debar you 
 the privilege of exercising your discretion in the choice of a station, but 
 we recommend, as in our opinion being the most likely of affording 
 objects for enterprise and profit, that you stretch off to Madeira, where 
 you will be most likely to intercept the Brazil convoys, and should you 
 be successful in falling in with vessels, finish your cruise there. If, on 
 the contrary, you cannot succeed in capturing vessels enough, and of 
 sufficient value to man, we would recommend you to go through the 
 Cape de Verde Islands and fill up your water, and from thence on the 
 coast of Brazil. The prizes you may order for the United States, we 
 think wfll be best to be ordered direct for New York or Wilmington, and 
 in the event of their safe arrival at any port in the United States, you will 
 direct them to write to us immediately on arrival, that we may send on 
 a confidential person to take charge of the property, in preference to 
 appointing agents at different places. 
 
 On your return to the United States, should you have any prisoners 
 on board, take care to secure them until they are delivered to the proper
 
 APPENDIX. 227 
 
 officer in order to obtain the bounty. Hoping that yonr cruise may ter- 
 minate successfully and honorably to yourself, officers, and crew, and 
 
 your country, we are 
 
 Your assured friends, 
 
 (Signed) JENKINS & HAVENS, Agents, 
 
 P. S. Be very particular in strictly prohibiting any plunder or depre- 
 dations on neutrals or other vessels. 
 
 CONVENTION FOR THE PAYMENT AND SETTLEMENT OF CER- 
 TAIN CLAIMS OF AMERICAN CITIZENS AGAINST PORTUGAL, 
 
 BETWEEN 
 
 THE UNITED STATES OF AMERICA AND THE QUEEN OF 
 PORTUGAL. 
 
 A PBOOL AMAT10N* 
 
 WHEBEAS a Convention between the United States of America and 
 Her Most Faithful Majesty the Queen of Portugal and of the Algarves, 
 was concluded and signed by their Plenipotentiaries, on the twenty-sixth 
 day of February, in the year of our Lord one thousand eight hundred and 
 fifty-one, which Convention, being in the English and Portuguese lan- 
 guages, is word for word as follows : 
 
 The United States of America and Her Most Faithful Majesty, the Queen 
 of Portugal and of the Algarves, equally animated with the desire to 
 maintain the relations of harmony and amity which have always existed, 
 and which it is desirable to preserve between the two Powers, having 
 agreed to terminate, by a Convention, the pending questions between 
 their respective Governments, in relation to certain pecuniary claims of 
 American citizens, presented by the Government of the United States 
 against the Government of Portugal, have appointed as their Plenipoten- 
 tiaries for that purpose, to wit,- 
 
 The President of the United States of America, Daniel "Webster, Secre- 
 tary of State of said Umted States, and 
 
 Her Most Faithful Majesty, J. 0. de FiganieTe 6 Morao, of Her Council, 
 Knight Commander of the Orders of Christ, and of 0. L. of Conception 
 of Yilla Vicoza and Minister Resident of Portugal near the Government 
 of the United States
 
 228 APPENDIX.- 
 
 Who, after having exchanged their respective full powers, found to be 
 in due and proper form, have agreed upon and concluded the following 
 articles : 
 
 ARTICLE I. 
 
 Her Most Faithful Majesty, the Queen of Portugal and of the Algarves, 
 appreciating the difficulty of the two Governments agreeing upon the 
 subject of said claims, from the difference of opinion entertained by them 
 respectively, which difficulty might hazard the continuance of the good 
 understanding now prevailing between them, and resolved to maintain 
 the same nnimpared, has assented to pay to the Government of the United 
 States a sum equivalent to the indemnities claimed for several American 
 citizens (with the exception of that mentioned in the fourth article) and 
 which sum the Government of the United States undertakes to receive 
 in full satisfaction of said claims, except as aforesaid, and to distribute 
 the same among the claimants. 
 
 ARTICLE II. 
 
 The high contracting parties, not being able to come to an agreement 
 upon the question of public law involving in the case of the American 
 privateer brig " General Armstrong," destroyed by British vessels in the 
 waters of the Island of Fayal in September, 1814, Her Most Faithful 
 Majesty has proposed, and the United States of America have consented, 
 that the claim presented by the American Government in behalf of the 
 captain, officers, and crew of the said privateer, should be submitted to 
 the arbitrament of a sovereign, potentate, or chief of some nation in 
 amity with both the high contracting parties. 
 
 ARTICLE m, 
 
 So soon as the consent of the sovereign, potentate, or chief of some 
 friendly nation, who shall be chosen by the two high contracting par- 
 ties, shall have been obtained to aet as arbiter in the aforesaid ease of 
 the privateer brig " General Armstrong," copies of all correspondence 
 which has passed in reference to said claim between the two Govern- 
 ments and their respective representatives, shall be laid before the arbite^ 
 to whose decision the two high contracting parties hereby bind them- 
 selves to submit.
 
 APPENDIX. 229 
 
 ABTIOLE IV. 
 
 iw. ,..,,. 
 
 The pecuniary indemnities which Her Most Faithful Majesty promises 
 to pay, or cause to be paid, for all the claims presented previous to the 6th 
 day of July, 1850, in behalf of American citizens, by the Government of the 
 United States (with the exception of that of the " General Armstrong,") 
 are fixed at ninety-one thousand seven hundred and twenty-seven dol- 
 lars, in accordance with the correspondence between the two Govern- 
 ments. 
 
 ARTICLE V. 
 
 The payment of the sum stipulated in the preceding article shall be 
 made in Lisbon in ten equal installments, in the course of five years, to 
 the properly-authorized agent of the United States, The first installment 
 of nine thousand one hundred and seventy-two dollars, seventy cents, 
 with interest, as hereinafter provided, {or its equivalent in Portuguese 
 current money) shall be paid, as aforesaid, on the 30th day of September 
 of the current year of 1851, or earlier, at the option of the Portuguese 
 Government ; and at the end of every subsequent six months a like install- 
 ment shall be paid ; the integral sum of ninety-one thousand seven hun- 
 dred and twenty-seven dollars, or its equivalent, thus to be satisfied on 
 or before the thirtieth day of September, 1856. 
 
 AETIOLB VI. 
 
 It is hereby agreed that each and all of the said installments are to 
 bear, and to be paid with, an interest of six per cent, per annum, from 
 the date of the exchange of the ratifications of the present Convention, 
 
 ARTICLE vn. 
 
 This Convention shall be approved and ratified, and the ratifications 
 shall be exchanged in the city of Lisbon within four months after the 
 date thereof, or sooner if possible. 
 
 In testimony whereof, the respective Plenipotentiaries have signed the 
 same, and affixed thereto the seals of their arms. 
 
 Done in the city of "Washington, D. 0., the twenty-sixth day of Feb- 
 ruary, of the year of our Lord one thousand eight hundred and fifty- 
 one. 
 
 \t. s.] DAN'L WEBSTEB, 
 
 [t. fl.] J. C. DE FlGANIJiBK 6 MOKAO.
 
 230 APPENDIX. 
 
 And whereas the said Convention has been duly ratified on both parta, 
 and the respective ratifications of the same were exchanged at Lisbon on 
 the twenty-third day of June, in the year of our Lord one thousand eight 
 hundred and fifty-one, by Charles B. Haddock, Charge d' Affaires of the 
 United States near the Government of Her Most Faithful Majesty, and 
 Antonio Aluizo Jervis d' Atouguia, Minister of State for Foreign Affairs 
 of her said Majesty, on the part of their respective Governments ; 
 
 Now, therefore, be it known, that I, Millard Fillmore, President of the 
 United States of America, have caused the said Convention to be made 
 public, to the end that the same, and every clause and article thereof, 
 may be observed and fulfilled with good faith by the United States and 
 the citizens thereof. In witness whereof, I have hereunto set my hand, 
 and caused the seal of the United States to be affixed. 
 
 Done at the city of Washington this first day of September, in 
 
 [L. B.] the year of our Lord one thousand eight hundred and fifty- 
 one, and in the seventy-sixth year of the Independence of 
 the United States. 
 
 MTTJ.ART> FlLLMOBB, 
 
 By the President : 
 
 WM. S. DEBBIOK, Acting Secretary of State. 
 
 Concluded 2Qth February, 1851. Ratified Wth March, 1851. Rati- 
 fication Exchanged 2Sd June, 1851. Proclaimed, 1st September, 1851. 
 
 MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, 
 
 COMMUNICATING, 
 
 In compliance with a resolution of the Senate, the Award of the 
 
 Emperor of France in the case of Brig General Armstrong.* 
 JANUARY 24, 1853. Ordered to lie on the table, and be printed. 
 To the Senate of the United States : 
 
 In answer to the resolution of the Senate of the 14th instant, rela- 
 tive to the award of the Emperor Louis Napoleon, of France, in the case 
 of the brig General Armstrong, I transmit a report from the Secretary 
 of State and the documents by which it was accompanied. 
 
 WABHIHQTOK, January 24, 1858. 
 
 * Ex. Doc. of Sen. No. 24, 2 Sess. 82 Congress.
 
 APPENDIX. 231 
 
 DEPARTMENT or STATE. ) 
 WASHINGTON, January 21, 1858. J 
 
 SIB : The Secretary of State, to whom has been referred the resolu- 
 tion of the Senate of the 14th instant, requesting the President to 
 " communicate to the Senate, if not incompatible with the public inter- 
 est, the award of the Emperor Louis Napoleon, of France, upon the 
 claim of the owners of the brig General Armstrong against the govern- 
 ment of Portugal, together with any correspondence upon that subject 
 not heretofore communicated to Congress " has the honor to lay before 
 the President a copy of a dispatch of the 13th ultimo, addressed to this 
 department by Mr. Rives, the United States Minister at Paris, and also a 
 translation of the award of the Emperor of France, to which it refers. 
 
 Respectfully submitted : 
 
 EDWA.BD EVKBETT. 
 To the PBESIDKNT OF THE UNITED STATES. 
 
 Mr. Rives to Mr. Everett. 
 
 LBGATION OF THB UHITID STATM. 
 PARIS, December 18, 1862. 
 
 SIB : I enclose herewith the copy of a letter addressed to me by the 
 Minister of Foreign Affairs, on the 10th instant, together with a copy 
 of my answer. In pursuance of the request of the Minister, and the 
 terms of my answer, I called at the Department of Foreign Affairs, on 
 the llth instant, at the hour named, and found the Minister of Portugal 
 already there. The Minister of Foreign Affairs was absent at the 
 moment of our arrival, having been sent for by the Emperor : but return- 
 ing soon afterwards, he immediately invited us into his cabinet. 
 
 He commenced the interview by repeating what he had already said 
 to me, and which I reported to you in my last dispatch, that the Presi- 
 dent of the republic was so incessantly occupied by the many and 
 important questions incident to the late change of government here, that 
 it was entirely out of his power to invite us to call upon him before 
 the consummation of that change, as he intended to do, in order that he 
 might deliver to us personally his award in the case of the " General 
 Armstrong." The Minister then proceeded to say that, as, in the present 
 state of things, the Emperor could not regularly invite us to an audience, 
 as we had not yet received our new letters of credence, he had deemed
 
 232 APPEDDIX. 
 
 it proper, rather than incnr any farther delay, to depute him, the Min- 
 ister of Foreign Affairs, to deliver to 'us, in his name, the award pro- 
 nounced by him, as President of the republic, in the case submitted to 
 his arbitrament by our respective governments. Having in my answer to 
 the note of the Minister of Foreign Affairs, stated that, under existing 
 circumstances, I had no power but to transmit the document in question 
 to my government, I thought it proper simply to repeat that remark. 
 
 The Minister of Foreign Affairs then handed to me the document 
 which I have now the honor to transmit to you, signed by the President 
 of the republic on the 30th day of November last, as his award in the 
 case of the " General Armstrong," placing a similar one, at the same 
 time, in the hands of the Minister of Portugal. 
 
 It may not be improper for me to add that I had never received from 
 any quarter any intimation of the nature of the decision rendered ; nor 
 did the Minister of Foreign Affairs, in the interview above mentioned, 
 make the slightest allusion to its bearing on the one side or the other. 
 He only said, in general terms, that the President had examined the 
 whole subject with great care and attention, and with an earnest desire 
 to render justice to both parties, according to the facts and principles 
 involved in the controversy. 
 
 I have the honor to be, with great respect, your most obedient ser- 
 vant, W. 0. KrvBS. 
 
 [Translation.] 
 
 Mr. Drouyn de ISHuya to Mr. Rivet. 
 
 DEPARTMENT or FOREIGN AFFAIRS, ) 
 PARIS, November, 29, 1852. ) 
 
 SIR : I have the honor to inform you that the arbitral decision asked 
 of the Prince President by the government of the United States, and 
 that of her most faithful Majesty, upon the claim relative to the Ameri- 
 can privateer, the " General Armstrong," has just been rendered, and 
 that the Prince President will immediately invite you to wait on him, 
 in order to deliver to you, at the same time with the Minister of Portu- 
 gal, the document containing the decision. 
 
 I avail myself of this occasion to renew to you the assurance of the 
 high consideration with which I have the honor to remain, sir, your very 
 
 humble and obedient servant, 
 
 DEOTJTN DE L'Hurs.
 
 APPENDIX. 233 
 
 [Translation.] 
 
 Mr. Drouyn de DHuys to Mr. Rives. 
 
 DEPARTMENT OF FOREIGN AFFAIRS. ) 
 Paris, December 10th, 1852. J 
 
 SIE : I had the honor of apprising you, under date of the 29th of last 
 month, that the arbitral decision relative to the American privateer 
 "General Armstrong," had just heen rendered. I informed you, at the 
 same time, that you would immediately receive the document containing 
 said decision. 
 
 Circumstances not having permitted the Emperor to invite you to wait 
 on him as he had intended, he has done me the honor of deputing me 
 to deliver, in his name, to the representatives of the two nations inter- 
 ested in the matter, the two documents destined for their respective gov- 
 -nments. 
 
 ''ch is the object which prompts me to request, sir, that you will have 
 ^indness to call at the Department of Foreign Affairs on Saturday 
 next, at three o'clock, if that day suits your convenience. 
 
 You will find in my cabinet the minister of Portugal, whom I have 
 invited to be present at this interview, and I will have the honor of 
 delivering into your hands, respectively, the decision rendered on 
 the subject of the difference which has existed between the govern- 
 ment of the United States of America and that of her most faithful 
 Majesty. 
 
 I avail myself of this occasion to renew to you the assurance of the 
 high consideration with which I have the honor to remain, sir, your very 
 
 humble and obedient servant, 
 
 DBOTTYN DE L'HTJYS. 
 
 Mr. Rives to Mr. Drouyn de L'Euyg. 
 
 LEGATION OP THB UNITED STATES, ) 
 Paris, December llth, 1862. ) 
 
 MONSIEUR LE MINISTEE : I had the honor to receive the note which your 
 excellency addressed to me, under the date of the 29th ultimo, informing 
 me that the Prince President of the republic would invite me immediately 
 to wait on him, that he might deliver to me, at the same time with the 
 Minister of Portugal, the decision rendered by him in the case of t&e
 
 234 APPENDIX. 
 
 privateer "General Armstrong," submitted to his arbitrament by the 
 governments of the United States and of Portugal. In consequence of 
 your excellency's communication, I held myself constantly ready, as I 
 had the honor to inform your excellency, to obey the invitation of which 
 you gave me notice the moment it should be received. 
 
 I have now the honor to acknowledge the receipt of your excellency's 
 note of yesterday, informing me that circumstances not having permitted 
 the invitation to be addressed to me, of which you gave me notice by 
 your communication of the 29th ultimo, the Emperor had designated 
 you to deliver, in his name, to the representatives of the United States 
 and Portugal, the two acts destined for their respective governments, 
 and requesting me to come to the Department of Foreign Affairs at three 
 o'clock to-day, to receive that intended for the government of the United 
 States. 
 
 I will do myself the honor, in conformity to your excellency's 
 request, to call at the Department of Foreign Affairs to-day, at the hour 
 named by you, to receive for transmission to my government, having no 
 other authority in the matter under existing circumstances, the important 
 document you propose to put into my hands to be communicated to it. 
 
 I have the honor to be, with sentiments of high consideration, your 
 
 excellency's most obedient servant, 
 
 W. 0. RIVES. 
 
 TRANSLATION OF THE AWAED OP PBE8IDKNT NAPOLEON IN THE CASE OT 
 THE " GENERAL ARMSTRONG." 
 
 We, Louis Napoleon, President of the Frencli Republic : 
 The Government of the United States, and that of her majesty the 
 Queen of Portugal and of the Algarves, having, by the terms of a con- 
 vention signed at Washington on the 26th of February, 1851, asked us 
 to pronounce as arbiter upon a claim relative to the American privateer 
 " General Armstrong," which was destroyed in the port of Fayal on 
 the 27th of September, 1814 ; after having caused ourself to be correctly 
 and circumstantially informed in regard to the facts which have been the 
 cause of the difference, and after having maturely examined the docu- 
 ments duly signed in the name of the two parties, which have been sub- 
 mitted to our inspection by the representatives of both powers, consider- 
 ing that it is clear, in fact, that the United States were at war with her
 
 APPENDIX. 235 
 
 Britannic majesty, and her most faithful majesty preserving her neu- 
 trality, the American brig, the " General Armstrong," commanded by 
 Captain Eeid, legally provided with letters of marque, and armed for 
 privateering purposes, having sailed from the port of New York, did, on 
 the 26th of September, 1814, cast anchor in the port of Fayal, one of 
 the Azores Islands, constituting part of her most faithful majesty's 
 dominions ; 
 
 That it is equally clear that, on the evening of the same . day, an 
 English squadron, commanded by Commodore Lloyd, entered the samo 
 port; 
 
 That it is no less certain that during the following night, regardless of 
 the rights of sovereignty and neutrality of her most faithful majesty, a 
 bloody encounter took place between the Americans and the English ; 
 and that, on the following day, the 27th of September, one of the vessels 
 belonging to the English squadron came to range herself near the 
 American privateer for the purpose of cannonading her; that this 
 demonstration, accompanied by the act, determined Captain Reid, fol- 
 lowed by his crew, to abandon his vessel, and to destroy her ; 
 
 Considering that if it be clear that, on the night of the 26th of Sep- 
 tember, some English long-boats, commanded by Lieutenant Eobert 
 Fausset, of the British navy, approached the American brig, the " Gene- 
 ral Armstrong," 1 it is not certain that the men who manned the boats 
 aforesaid were provided with arms and ammunition ; 
 
 That it is evident, in fact, from the documents which have been exhi- 
 bited, that the aforesaid long-boats, having approached the American 
 brig, the crew of the latter, after having hailed them and summoned 
 them to be off, immediately fired upon them, and that some men were 
 killed on board the English boats, and others wounded some of whom 
 mortally without any attempt having been made on the part of the 
 crew of the boats to repel at once force by force ; 
 
 Considering that the report of the Governor of Fayal proves that the 
 American captain did not apply to the Portuguese government for pro- 
 tection until blood had already been shed, and, when the fire had ceased, 
 the brig " General Armstrong " came to anchor under the castle at a 
 distance of a stone throw ; that said governor states, that it was only 
 then, that he was informed of what was passing in the port ; that he 
 did, on several occasions, interpose with Commodore Lloyd, with a view
 
 236 APPENDIX. 
 
 of obtaining a cessation of hostilities, and to complain of the violation of 
 a neutral territory ; 
 
 That he effectively prevented some American sailors, who were on 
 land, from embarking on board the American brig for the purpose of 
 prolonging a conflict which was contrary to the law of nations ; 
 
 That the weakness of the garrison of the island, and the constant dis- 
 mantling of the forts, by the removal of the guns which guarded them, 
 rendered all armed intervention on his part impossible 1 ; 
 
 Considering, in this state of things, that Captain Reid, not having 
 applied from the beginning for the intervention of the neutral sovereign, 
 and having had recourse to arms in order to repel an unjust aggression 
 of which he pretended to be the object, has thus failed to respect the 
 neutrality of the territory of the foreign sovereign, and released that 
 sovereign of the obligation in which he was, to afford him protection by 
 any other means than that of a pacific intervention ; 
 
 From which it follows that the government of her most faithful 
 majesty cannot be held responsible for the results of the collision which 
 took place in contempt of her rights of sovereignty, in violation of the 
 neutrality of her territory, and without the local officers or lieutenants 
 having been required in proper time, and enabled to grant aid and pro- 
 tection to those having a right to the same ; 
 
 Therefore, we have decided, and we declare, that the claim presented 
 by the government of the United States against her most faithful 
 majesty has no foundation, and that no indemnity is due by Portugal in 
 consequence of the loss of the American brig, the " General Armstrong," 
 armed for privateering purposes. 
 
 Done and signed by duplicate, under the seal of State, at the palace 
 of the Tuileries, on the thirtieth day of the month of November, in the 
 year of grace one thousand eight hundred and fifty-two. 
 
 [ L - s.] L. NAPOLBON. 
 
 LIST OF DOCUMENTS BEAD IN EVIDENCE. 
 
 FIE8T SERIES, 1814. 
 
 Capt. Reid's Protest, Sen. Doc. 14, 29th Cong. 1st Sess., p. 4. 
 Letter of John B. Dabney, U. S. consul at Fayal, to the Secretary of 
 State. In Am. State Papers, volume " Naval Affairs," p. 494.
 
 APPENDIX. 237 
 
 Capt. Reid's letter, ibid. 495. 
 
 Mr. Dabney to the Governor of the Azores. In Sen. Doc. No. 14, 
 29th Cong., 1st Sess., p. 16, marked "No. 1." 
 
 The Governor of the Azores to the commander of the British forces, 
 44 No. 2," ibid. p. 17. 
 
 The commander of the British sqtiadron to the Governor of the 
 Azores. " No. 3," ibid. 
 
 The Governor of the Azores to the commander of the British forces 
 "No. 4," p. 18, ibid. 
 
 Same to the Same. Hid., " No. 6." 
 
 The British consul to the Governor of the Azores, " No. 6," ibid., 
 p. 19. 
 
 The Governor of the Azores to Sefior Acevedo, the Minister of State 
 of Portugal. Ibid., p. 12. 
 
 Mr. Dabney to the Governor of Fayal. P. 4, ibid. 
 
 The Governor of the Azores to the Minister of State of Portugal. 
 Ibid, p. 19. 
 
 The Marquis de Aguiar to Mr. Sumpter. Ibid., p. 22. 
 
 The Same to Lord Strangford. Ibid., p. 21. 
 
 Mr. Sumpter's reply to Marquis de Aguiar. Ibid., p. 7. 
 
 SECOND 8EBIE8, 1815 TO 1818. f , 
 
 Mr. Monroe to Mr. Sumpter. Ibid., p. 20. 1815. 
 
 Mr. Sumpter to Mr. Monroe. Hid., p. 23. " 
 
 Reports of the Naval Committee of the Senate of the U. 8., January, 
 1817. 
 
 Mr. John Quincy Adams to the Chevalier de Serra, 1818. In Ex. 
 Doc. 53, H. of Rep., 32d Congress, 1st Sess., p. 13. 
 
 A period of sixteen years here intervenes, and the case is prosecuted 
 from Mr. Monroe's administration, without a knowledge of Portugal's 
 admission, and the proceedings had at Rio Janeiro. 
 
 THIBft 8EBIE8, 1834 TO 1854. 
 
 Mr. Louis McLane to Capt. Reid. Sen. Doc. 14, p. 28. 1884. 
 Mr. Dickens to Mr. Kavanagh. Ibid., p. 23. 1835.
 
 238 APPENDIX. 
 
 Mr. Kavanagh to Mr. Forsyth. Sen. Doc., 14, p. 29. 1836. P. 84, 
 two letters. 1837. 
 
 Same to the Same. Ibid., p. 36. 1838. 
 
 Same to the Same, grounds of refusal by Portugal. Ibid., p. 30. 1837. 
 
 Same to the Same, " " " p. 33. " 
 
 Mr. Forsyth to Mr. Reid, continued claim. Ibid., p. 37. 1840. 
 
 Mr. Webster to Mr. Barrow, in instructions. Ibid., p. 40. 1842. 
 " Mr. Reid. Ibid., p. 40. 1842. 
 
 Mr. Barrow to Mr. Webster. " p. 41. " 
 " Duke of Terceira. " p. 41. " 
 
 Mr. Webster to Mr. Barrow. " p. 42. " 
 
 Fletcher Webster to Mr. Reid. " p. 43. " 
 
 Mr. Reid to F. Webster, calls attention to proceedings at Rio. Ibid., 
 p. 43. 1842. 
 
 De Castro to Mr. Barrow. Ibid., p. 46. 
 
 Mr. Barrow to Mr. Webster. Ibid., p. 47. 1843. 
 
 Mr. Barrow to Mr. Upshur. " p. 48. " 
 
 De Castro to Mr. Barrow, final answer and refusal of Portugal. Ibid. 
 p. 60. 1843. 
 
 Mr. Reid to Mr. Upshur, urging a reply to De Castro's letter. Ibid., 
 p. 61. 
 
 Mr. Upshur to fc[r. Reid, declining to prosecute the claim further. 
 Ibid., p. 54. 1844. 
 
 Mr. Reid to Mr. Upshur, urging the government not to abandon the 
 claim. Ibid., p. 54. 
 
 Mr. Reid to Mr. Oalhoun. Ibid., p. 68. 
 
 FOURTH SERIES, 1846 TO 1850. 
 
 Report of the Committee on Foreign Relations of the U. S. Senate, 
 made by Mr. Atherton, 19th May, 1846, 1st Sesa. 29th Cong. 
 
 Letter of instructions from Mr. Clayton to Mr. Hopkins. G-, p. 16, 
 Doc. No. 63, 1st Sess. 32d Cong., April, 1849. 
 
 Mr. Hopkins to Count Tojal. H, p. 83, ibid, (end of the letter), June, 
 1849. 
 
 Mr. Clayton to J. B. Gay. U, p. 68, ibid., March, 1850. 
 v Mr. Clay to Count Tojal, making a peremptory demand. V, p. 69, 
 ibid, June, 1850.
 
 APPENDIX. 239 
 
 Count Tojal to Mr. Clay. Y, p. 73, Ho. Doc., No. 63, proposing to 
 pay all the other claims, and arbitrate this case. July, 1850. 
 
 Letters showing proof of lonus in consideration of agreement to 
 
 arbitrate ; 
 
 Mr. Clay to Count Tojal. Z, p. 77, ibid. July, 1850. 
 Count Tojal to Mr. Clay. A A, p. 79, ibid. July, 1850. 
 Mr. Clay to Count Tojal. B B, p. 80, ibid. July, 1850. 
 Mr Webster to De Figaniere, B B B, p. 112, ibid. Sept., 1850. 
 
 Letters admitting England's acknowledgments: 
 Count Tojal to Mr. Hopkins. I, p. 33. Sept. 1849. 
 Count Tojal to Mr. Clay. L, p. 51, ibid. March, 1850. 
 Mr. Clay to Count Tojal. M, p. 54, ibid. March, 1850. 
 That Portugal never abandoned this claim against England. H, p. 81, 
 ibid. June, 1849. 
 
 Demand of correspondence between Portugal and England : 
 Mr. Clay to Count Tojal. K, p. 46, ibid, Nov. 1849. 
 
 Interference of England in this negotiation : 
 Count Tojal to Mr. Clay. N., p. 57, ibid. April, 1850. 
 Same to the same. P., p. 62, ibid. May, .1850. 
 
 Determination of the President not to arbitrate this claim: 
 Mr. Clayton to Mr. Clay. U, p. 68. March, 1850. 
 Mr. Clayton to De Figaniere. T T, p. 97. April, 1850. 
 Same to Same. V V, p. 99. May, 1850. 
 Same to Same. No. 22, p. 180. May, 1850. 
 Same to Same, No. 25, p. 186. June, 1850. 
 Mr. De Figaniere to Mr. Webster, Z Z, p. 110. Aug., 1850. 
 Mr. Clayton to Mr. Eeid. [Private F.] June, 1852. 
 
 FIFTH 8KBIES, 1850 TO 1854. 
 
 The action of Mr. Webster, who agreed to submit the claim to arbitra- 
 tion, three days after he became Secretary of State. See Mr, Clayton's 
 Speeches, p. 5, 13, and 17. 
 
 Mr. Webster to Mr. Clay. D D, p. 83. Aug. 1850. 
 
 Mr. Webster to De Figaniere. B B B, p. 112. Sept., 1850.
 
 24:0 APPENDIX. 
 
 Captain Eeid to Mr. Webster. In Senate Speeches, p. 9. Aug. 26th 
 1850. 
 
 Mr. Webster to Capt. Keid. Aug. 29th, 1850. In Sen. Speeches, p. 7 
 Mr. Keid to Mr. Webster. Sept. 5, 1850. Rid. 
 Mr. Webster to Mr. Reid. Sept. 18th, 1850. Ibid. 
 Mr. Webster to Mr. Hadduck, F F, p. 84. Ho. Doc., No. 53. Feb., 1851. 
 Same to Same. G G, ibid. March, 1861. 
 
 Convention between the United States and Portugal. 
 Copy of draft of Protocol. June 9, 1851. [No. 1.] 
 Letter of Mr. J. A. Thomas to Mr. Phillips. [No. 2.] 
 
 That the proof of claimant* demand was limited to the correspondence, 
 subsequent to that of 1814. 
 
 Mr. Webster to Mr. Hadduck. HH,p.85. Ho. Doc. No. 53. March, 1851. 
 
 Same to Same. K K, p. 86. Ibid. July, 1851. 
 
 Mr. Hadduck to Mr. Webster. L L. Ibid. July, 1851. 
 
 Argument of claimants refused to be submitted by the Department of 
 State to the arbiter. [See Memorial Ben. Mis. Doc. 14, 1 Sess. 33 Cong.] 
 
 Mr. Keid to Mr. Webster. July 71& 1851. [Marked B.] 
 
 Same to Same. Aug 1, 1851. [Marked 0.] 
 
 Mr. Crittenden to Mr. Keid. Sept. 29th, 1851. [Marked D.j 
 
 Mr. Rives to Mr. Everett, enclosing the award of Louis Napoleon. 
 Paris, Dec. 13, 1852. Ex. Doc. of Sen. No. 24, 2 Sess., 32 Cong. 
 
 Mr. Reid to Mr. Everett, Jan. 8th, 1853, protesting against the award 
 of Louis Napoleon. [No. 8.] 
 
 Mr. Everett, Secretary of State, to Mr. Reid. [Marked E.] 
 
 Letter of Charles W. Dabney, TJ. S. consul at Fayal, to Wm. L. 
 Marcy, Secretary of State, May 21st, 1853, proving the fact that the 
 English were the first aggressors. [No. 4.] 
 
 Letter of Mr. Marcy to the President, December 10th, 1863, declaring 
 the award to be final as to the liability of Portugal. See Sen. Ex. Doc. 
 No. 7, 1 Sess. 33 Cong. 
 
 The unanimous report of the Committee on Foreign Relations of the 
 Senate, by Hon. John Slidell. March 10th, 1854. No. 157, 1 Sess. of 33 
 Cong. 
 
 The unanimous report on Foreign Affairs of the House, by Hon. John 
 Perkins, Jr. May 29th, 1854. No. 139. 1 Sess. of 83 Cong.
 
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